Law 2006-08 Archives

December 30, 2008

LAW: "But The Internet Said She Was 18!"

It's the old story:
Boy searches for girl on SexSearch.com
Boy meets girl
Boy has sex with girl
Girl turns out to be 14
Boy gets arrested for sex with a minor
Boy sues SexSearch.com for allowing her to represent on her profile that she was 18.

A risk is considered open and obvious when its "dangers are within the body of knowledge common to the community" and "generally known and recognized by the ordinary consumer." Gawloski v. Miller Brewing Co., 644 N.E.2d 731, 733 (Ohio Ct. App. 1994). In this case, the danger that a member of SexSearch could be a minor is open and obvious. Internet users' anonymity and potential for false personal representations are well known. Doe was familiar with the registration process and knew that SexSearch did nothing more than asking members to check a box indicating that they are at least eighteen. Furthermore, even if there was a duty to warn, the statement in the Terms and Conditions that SexSearch could not verify members' information could be seen as a satisfaction of that duty. Therefore, Doe has failed to state a claim for failure to warn.

From this to this to this, I'm starting to take an even dimmer view of my own profession than I already did. The first guy I actually dealt with on a case about ten years ago, and he did in fact seem like a perfectly reasonable guy.

1. You need one seriously unruly crowd - at 5am! - to trample to death a man who is 6'5" and weighs 270 pounds.

2. Somehow, it seems there's a rush here - obviously by lawyers looking for deep pockets - to blame absolutely everybody except the people who trampled a guy to death to go shopping, and apparently did so only because he was in the way of a pregnant woman they were in the process of trampling. I mean, Wal-Mart is a store, not a zoo. It shouldn't have to anticipate people acting like this.

The Dutch coffee shop policy has come under fresh criticism after the Dutch cities of Bergen op Zoom and Roosendaal, located near the Belgian border, said they will close all their shops within two years to combat drug tourism and crime.

HOLLAND is pioneering cannabis plantations to supply the drug to coffee shops in a bid to cut out criminal gangs.

Dozens of Dutch mayors voted for the scheme at a "weed summit" to discuss how to enforce their relaxed drug laws.

Cannabis can be legally sold at licensed shops and people can carry up to five grams without prosecution. But cultivation and dealing is outlawed, which has created an illicit two billion Euro ...annual trade. The plantations would supply cannabis legally.

Marijuana policy is a slippery thing to get hold of; there's a libertarian case to be made for letting people waste their lives getting high on a drug whose ill effects are more similar to those of booze and cigarettes than to those of crack or meth or heroin, and of course there's the fact that enforcement against such a widely-used and easily-grown substance tends by nature to be arbitrary, invasive, cost-ineffective and shot through with hypocrisy. But legalization, as the Dutch have had time to experience, nonetheless presents its own perils. Personally, I tend to think the issue ought to be left to the most local governments possible, and the Dutch experiment reminds us that a local-control regime can lead even the most libertine communities gradually to wake up and smell the potheads.

Let's do a Q&A on the 263-page Branchflower report, which I read from cover to cover, and on the 125-page Petumenos report, which I have only yet had the chance to skim. I may return to this after the election when we have more time to walk through the evidence (win or lose tomorrow, Gov. Palin will continue to be an important figure in national politics).

First, the Branchflower report:

(1) A report was issued by one man, Stephen Branchflower.

(2) Branchflower was handpicked, and his investigation directed, by Hollis French - an Obama supporter who has a personal axe to grind in the facts under investigation. Branchflower, French and Walt Monegan, the chief witness in the case, all appear to go way back together in Alaska law enforcement circles.

(3) The only wrongdoing Branchflower could find was under a general statute that says public officials may not engage in an "effort to benefit a personal ... interest through official action" - he did not find a violation of any specific statute, rule or regulation. To conclude that Gov. Palin's actions were in her personal interest rather than the best interests of the Alaskan people and their government, you must believe that her actions were actually wrong.

(4) In order to find that Gov. Palin's actions were actually wrong, Democrats must be willing to argue that an irresponsible and abusive state trooper who made death threats against Gov. Palin's father and menaced her sister in her hearing and used a Taser on a 10-year-old is a good person to have wielding armed authority on behalf of the State of Alaska. Because otherwise they are making a technical legal argument that she did the right thing in the wrong way - yet they don't have any technical violation to hang their hats on.

Independent Counsel has concluded the wrong statute was used as a basis for the conclusions contained in the Branchflower Report, the Branchflower report misconstrued the available evidence and did not consider or obtain all of the material evidence that is required to properly reach findings.

A: In broad outlines, two things. One, the Palin family had a long-running dispute - predating Sarah Palin's campaign for Governor - with Alaska State Trooper Michael Wooten, the ex-husband of Gov. Palin's younger sister Molly. Trooper Wooten remains employed as a State Trooper. Two, in July 2008, Gov. Palin fired Public Safety Commissioner Walt Monegan, a Cabinet-level employee whose job includes supervising the State Troopers. (Technically, Monegan was demoted, not fired, but the point is that he was removed from his job, and chose to decline the reassignment). The issues are whether Gov. Palin acted improperly in seeking to get Trooper Wooten fired or in firing Monegan.

Moreover, Branchflower's report is inherently one-sided, as he didn't have access to Gov. Palin, her husband, her sister or a number of other people supportive of the Governor. Obviously, that's due to the battles over the scope and authority of Branchflower's investigation, which in turn were driven by the McCain-Palin camp's justifiable concerns about the fairness of the investigation. Branchflower refused to reference or incorporate the written response by Gov. Palin to the Personnel Board's investigation or the sworn statements of Todd Palin and other witnesses who provided statements late in the game. He also does not appear to have interviewed Trooper Wooten, receiving only a written statement from him. (See Branchflower Report ("BR") 5, 7). But he did find time to interview Democratic Senate candidate Mark Begich, who was actually the first person he interviewed. BR 2. As such, his report should be considered only as one part of the story. Indeed, if you look at his crucial conclusion on page 67 of the report regarding the Palins' concerns about Wooten, Branchflower draws inferences against the Palins while admitting that "in the absence of an interview with either Governor Palin or Todd Palin, the specific answers to [his] questions [about the genuineness of their motives] are left unanswered," then goes about construing the remaining evidence against them on what, as I note below, is a fairly slender foundation. Gov. Palin has, of course, subsequently submitted to an interview that will be part of the conclusions to be drawn after the election by both the Legislature and the Personnel Board, in both of which Gov. Palin obviously has more faith than in Branchflower.

I should also note here that the meandering and repetitive 263-page report is only the public volume. There is also a confidential portion the public can't examine. We can only evaluate Branchflower's public work to see if it supports his conclusions. As discussed below, the public report simply does not purport to address many of the important issues.

Sen. Gene Therriault (R.) told Branchflower, "I don't understand why you would have to defer that question to Sen. French. If it's your list you're in complete control of the list, then why can't you answer the question?"

Branchflower had no explanation. He only offered, "I'm not sure why his name was removed. My initial request was to have him on the list." At that point, French interjected. "It appeared to me there wasn't the political will to subpoena Tibbles."

Democratic state senator Hollis French, who's managing the investigation, is already jumping to conclusions, muttering about "impeachment" to the press, and yet simultaneously he's short-circuited any kind of basic due process by refusing to share with Gov. Palin or her counsel the historical evidence (e.g., emails) that the Legislature's investigator is collecting to use against her! At least one Alaska legislator has already called for French to step down, citing his obvious bias. French has already boasted to ABC News of his desire to "release his final report by Oct. 31, four days before the November election," as an "October surprise" that's "likely to be damaging to the Governor's administration."

John McCormack notes:

Hollis French is now managing the investigation into Monegan's firing, and French has already made partisan remarks about it to the press, saying to the Washington Post: "It undercuts one of the points they are making that [Palin] is an ethical reformer."

Amanda Carpenter notes that some press reports support the notion that Wooten's union, the PSEA (which as discussed below was at loggerheads with Palin in the dispute that precipitated Monegan's demotion) is also coordinating with the Obama campaign:

The same week PSEA filed their complaint, CNN reported that Obama campaign officials had been contacting Wooten's union, although Obama spokesmen have vehemently refuted CNN's report as well as one from the Wall Street Journal's John Fund that said more than 30 lawyers, investigators and opposition researches had been deployed to Alaska to dig up dirt on Palin.

I'm not, as yet, as familiar with Petumenos, though I am sure we will learn more about him and the Personnel Board. I assume, given that Gov. Palin submitted her own request for a Personnel Board investigation, that she felt it would be a more sympathetic venue.

Q: OK, that's all well and good, but let's discuss the merits here. Did Gov. Palin act improperly or illegally in firing Walt Monegan?

Branchflower says she had every right to fire Monegan - he exonerates the Governor on the totally obvious ground that she was entitled to fire such a high-ranking officer in her cabinet for any reason or no reason; Monegan serves at the pleasure of the Governor. (See Finding Number Two at p. 69-71 of Branchflower's report). As discussed below, Branchflower's only basis for complaining about Monegan's firing is that he believes that it was partly motivated or precipitated by the dispute over Wooten. In other words, all roads lead back to Wooten.

In a July 7 e-mail, John Katz, the governor's special counsel, noted two problems with the trip: The governor hadn't agreed the money should be sought, and the request was "out of sequence with our other appropriations requests and could put a strain on the evolving relationship between the Governor and Sen. (Ted) Stevens."

Four days later, Monegan was fired. He said he had kept others in the administration fully apprised of his plans to go to Washington.

Consider how even Andrew Halcro - a 2006 Gubernatorial candidate defeated by Palin and now the blogger who started this whole kerfuffle, and thus a person most ill-disposed towards Sarah Palin - described the budget battle:

the Palin administration wanted Monegan to go in another direction. They wanted him to cut corners on a budget that had already fallen behind over the last decade. Under Former Governor Murkwoski there was significant investment made to try and catch up with growing costs but Palin's budgets have again started to starve the agency.

To make matters worse, the change to the state's retirement benefit program adopted by the legislature in 2004 has had a negative effect on the departments ability to recruit new Troopers.

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Monegan and his department were getting too far out in front of Palin, acting in ways that were independent and contrary to the governor's wishes. Palin needed to replace Monegan with someone who would be seen but not heard while doing the governor's bidding.

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Walt Monegan was fired because he fought too hard. Governor Palin fired Monegan because she understood too little and wanted a puppet as commissioner.

Regardless of whose side you took in the budget battle, the fact is, taking public sides against your boss' budget decisions is very close to the top of the list of ways to get yourself fired in politics. There's simply no way to gloss over the differences of policy and politics that led Monegan to get demoted. Branchflower really had no choice but to find that demoting Monegan was a legitimate exercise of Gov. Palin's authority.

Petumenos concurs that there was no impropriety in demoting/reassigning Monegan.

Q: So, if Gov. Palin had legitimate reasons to fire Monegan, what on earth is Branchflower complaining about?

It's all about Wooten.

Branchflower found that Gov. Palin "abused her power by violating Alaska Statute 39.52.110(a) of the Alaska Executive Branch Ethics Act," which provides:

The legislature reaffirms that each public officer holds office as a public trust, and any effort to benefit a personal or financial interest through official action is a violation of that trust.

It's undisputed that Gov. Palin did nothing to act in her financial interest, so the question is whether she acted to benefit a "personal" interest. As noted above, it's undisputed as well that she had other legitimate reasons to remove Monegan, and no personal interest in doing so.

But let's assume for the sake of argument that the strongest case against Gov. Palin is true: that she pressured Monegan to fire Wooten, and that the degree of the pressure to fire Wooten is illustrated by the removal of Monegan from his position when he wouldn't do it himself. (This involves multiple leaps over gaps in Branchflower's evidence, but we'll go there for now for the sake of argument. I'm also glossing here over Branchflower's confused legal definition of what state of mind is required to "knowingly" violate the Ethics Act, although I would argue as well that as a legal matter, Branchflower really has no basis to argue that Gov. Palin "kn[e]w that ... her conduct [was] in violation of the Act," BR 51).

To the extent the Governor is alleged to have sought a non-financial personal benefit from an attempt to have Mr. Wooten dismissed, that benefit would have been a benefit shared generally with the public -- namely, the benefit of a trooper force free from rogue officers who have been found guilty of acts of violence and recklessness against the public. The Ethics Act specifically permits state officials to act in such circumstances, and thus even if the allegations were true -- which they assuredly are not -- there would be not probable cause to pursue the claim in this matter.

Beldar has his own take on what a "personal interest" is (he notes that "Branchflower reads the Ethics Act to prohibit any governmental action or decision made for justifiable reasons benefiting the State if that action or decision might also make a public official happy for any other reason," which I suppose might be a useful rule where you have a clear-cut benefit like a financial interest), as does Paul Mirengoff.

Petumenos, at pp. 17-19, essentially agrees with the Governor's lawyers, and specifically notes that it would be problematic to construe the statute as broadly as Branchflower does - apparently without precedent in Alaska law - in a way that would act as a positive constraint against a Governor acting in the best interests of the public on a matter in which she has no concrete interest similar to a financial interest.

My own view is much the same: acting to get rid of a trooper who is a hazard both to the public and to the State Treasury (through the risk of lawsuits against the State if he misbehaved) is not just a defensible use of the Governor's authority, it's her job. It's illogical to find a significant ethical violation - as required by the precedents cited by Gov. Palin's attorneys - if the Governor reasonably and sincerely believed she was acting in the best interests of the people she was elected to represent. The Governor is, after all, the state's Chief Executive, with sole and really irreplaceable responsibility for public safety and the public fisc. If she had information causing her to believe that one of her subordinates represented a threat to public safety, there's really no good reason why she should have been precluded from doing everything in her power to remove that threat (this is especially true in a small state where people are more apt to know each other).

I just don't see how a legal prohibition on Gov. Palin acting for a "personal interest" - where she had no financial interest at stake - could be triggered if she reasonably and sincerely believed she was acting in the best interests of the public in the case of a trooper who was a menace to society. The fact is that if it is shown that she reasonably and sincerely thought that Wooten should not be a trooper, the benefit of removing him from that position would not be significantly greater for her - as the sister of his estranged and presumably embittered ex-wife - than for the average citizen. There should only be any sort of ethics complaint here if there's a reasonable basis for finding that her concerns about Wooten were pretextual and not supported by a reasonable and sincere desire to protect the public interest, in which case the personal aminus becomes a more significant element in the decisional matrix. As I discuss below, Branchflower does not come close to meeting that standard.

Q: Did Gov. Palin pressure Monegan to take action against Trooper Wooten?

Branchflower dedicates the bulk of his investigation to this question. As to Gov. Palin personally, the evidence suggests that while she repeatedly made clear to Monegan her grievances with Wooten as a trooper, she (1) never directly or indirectly instructed Monegan to fire Wooten and (2) took to heart Wooten's admonition early in her term that for legal reasons she should not talk directly to Monegan about Wooten.

"For the record, no one ever said fire Wooten. Not the governor. Not Todd. Not any of the other staff," Monegan said ... "What they said directly was more along the lines of 'This isn't a person that we would want to be representing our state troopers.'"

Now, Monegan admits that he was never asked to fire Wooten. He also admits that after he advised Gov. Palin early in her term (February 2007) that it would be unwise to discuss the employment of a particular trooper with him, she did not raise the issue again.

That said, and for today at least I'm skimming over some of the details here that were covered exhaustively in the reports, basically the investigators' conclusions turned on Todd Palin and some of the Governor's key staffers constantly pestering Monegan about what a bad trooper Wooten was.

The argument as to why this was improper is, mainly, that Monegan really couldn't fire Wooten - apparently, under the collective bargaining agreement (and possibly state law as well, I'm writing quickly here and can't recall offhand) since he'd already been investigated and given a slap on the wrist, there was no way to reopen his case.

Of course, (1) the Governor can change the law and (2) the collective bargaining agreement was open to renegotiation - it expired in June 2008. That's not to say in either case that Gov. Palin had imperial power to just rewrite the civil-service laws, but it's worth remembering that the rules here were not cast in stone forevermore, and in fact the example of how Wooten got away with the things he had done seems to have stuck in Gov. Palin's craw as an example of why she should be reconsidering the supervision of the troopers.

Q: Did Gov. Palin reasonably and sincerely believe that Trooper Wooten should not be a State Trooper?

I believe the evidence shows rather compellingly that Trooper Wooten's conduct, and specifically the conduct that the Palins complained about, demonstrates his unfitness to serve as a State Trooper and that his continuance in that position presented a risk to public safety as well as a liability risk to the State of Alaska. The record clearly supports that both Gov. Palin and her husband believed this to be true. Thus, to challenge the Palin family's complaints about Trooper Wooten, her critics must argue that Trooper Wooten is a good person to have exercising armed authority on behalf of the State, or, alternatively, that the Governor should not have done anything about him even though he was a menace.

And it's not just limited to dangers to the public. The evidence is also quite clear that Gov. Palin was concerned, repeatedly, about the possibility that Wooten could do something to a member of the Alaskan public that would open the State to the threat of a big-dollar lawsuit, a concern apparently triggered by public reports about other troopers whose conduct led to such judgments during the time period in question. If you know anything about litigation, you know that if the State continued to employ Wooten after the Governor herself knew that he was a 'ticking time bomb,' that would present elevated risks of a massive damages award in the hands of a skilled trial lawyer. New Governors are not required to check at the door the things they have learned in life outside government; there would be no way in such a lawsuit to keep it from coming out that the state's chief executive knew of an extensive history of Wooten's misconduct that rendered him unfit to carry a gun and a badge.

Monegan said Palin mostly backed off, but kept raising the matter indirectly through e-mails. In the fall of 2007, Monegan said he alerted her to a bad jury verdict against a trooper in rural Alaska, and she replied by mentioning Wooten, but not by name.

"She said troopers like this one and my former brother-in-law, or that trooper I used to be related to, are the things that make people not trust troopers," Monegan told The Post yesterday.

"We had a lot of conversations about a guy who threatened my family and verbally assaulted my daughter. We talked about my concerns. We talked about Wooten possibly pulling over one of my kids to frame them, like throwing a bag of dope in the back seat just to frame a Palin," he said of his conversations with one Palin aide.

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"I make no apologies for wanting to protect my family and wanting to publicize the injustice of a violent trooper keeping his badge and abusing the worker compensation system. The real investigation that needs to be conducted for the best interests of the public at large is the Department of Public Safety's unwillingness to discipline its own."

As I said, I have not had time to synthesize in a post all of the evidence here. Let's note the big one. In February 2005, as the marital dispute between Mike Wooten and Molly McCann was escalating, Sarah Palin (then a private citizen) was called by her sister to listen in on a big argument between Wooten and his wife (Palin noted in an August 2005 email that this particular altercation was precipitated by the revelation that Wooten had been cheating on his wife). Fearing for her safety in a heated argument, Molly called her older sister Sarah "in case I do need help," and Sarah stayed on one open line and had her son Track listen in with her. You can read the State Trooper investigator's interview 2 months later with Sarah Palin here (I'd block-quote at greater length but I can't copy and paste from these PDFs) - what they heard was chilling, and I wonder how Democrats can read her witness statement and take sides with Wooten as he storms in yelling at his wife in a rage (Palin notes that he's a very big guy, towering over his wife, and was likely wearing his service revolver) and tells her, "If your dad helps you through this divorce, if he gets an attorney he's gonna, he's gonna eat an F'n lead bullet. I'm gonna shoot him." and "I know people in all the right places, in high places. I know judges. I know attorney's [sic]. I have relationships with these guys. You guys are all going down." Palin got concerned enough that she had Track call Molly's neighbor, and Palin drove over to their house herself, eventually leaving when Wooten seemed to have calmed down. Palin noted in an August email the history of Wooten's "physical abuse of his wife." On April 11, 2005, Molly obtained a Domestic Violence Protective Order against Wooten.

Page also relayed that Inv. Wooten may be taking some kind of steroid supplement and having problems with alcohol and relayed a story where (nv. Wooten drove while intoxicated from the Mug Shot Saloon. Page said he had encouraged Molly and Heath to report this behavior to the troopers but they are scared. Page has personally observed Jnv.Wooten's behavior change over the last few months and described him as "disconnected."

+++

Mike has also told Molly that he is taking a testosterone supplement that is illegal. He gets the substance from a friend he weight lifts with whose name she does not know. She cannot recall the name of the substance, just that it has a three letter initial name like MTD, and comes in small, blue pills.

(That's aside from the drinking and driving angle in that particular report).

Molly McCann, Sarah Palin and Track Palin allege that on February 17, 2005, Investigator Wooten made a comment to Molly McCann that he would shoot her father if he hired a Iawyer for her. McCann advised that Investigator Wooten made this comment to her, and that Sarah and Track Palin who were listening over an open telephone line overheard it. Investigator Wooten was questioned about the comment and denied ever making the statement. Although McCann, Sarah Palin and Track Palin all recalled hearing the statement, a statement 'or implied threat to a non-present third party is not a crime. Although McCann and Sarah Palin felt that their father's life was in danger by the statement, neither mentioned the threat to their father for several weeks. Nevertheless, a statement of this sort by a trooper reflects badly on [Alaska State Troopers].

Anchorage Superior Court Judge John Suddock reviewed the complaints filed by Palin and her family. At trial on Oct. 27, 2005, the judge expressed puzzlement about why the family was trying to get Wooten fired, since depriving the trooper of a job would harm his ability to pay family support to Palin's sister.

"It appears for the world that Ms. McCann and her family have decided to take off for the guy's livelihood -- that the bitterness of whatever who did what to whom has overridden good judgment," Suddock said in an audio recording from the trial on TV station KTUU's Web site. "Aesop told us not to slay the goose who lays the golden egg. For whatever reason, people are trying to slay the goose here and it tends to diminish his earning capacity."

(See also BR 53-54). Branchflower mainly concluded that concerns over Wooten must be pretextual because the Palins dispensed with much of their security detail...but that's a logical non-sequitur; you could believe that Wooten is a dangerous guy with a hair-trigger temper who has no business in law enforcement and still not think he would hunt down and kill the governor of the state. At the same time, Branchflower's report makes clear that Gov. Palin expressed not wanting to have Wooten at events she was attending.

There's a whole bunch of other problems with Wooten I lack the time here to fully explore (including a number of findings against him by a state police internal investigation) - some minor, some more serious, but collectively giving the impression of a guy who drank too much, was very confident that he was above the law, and had little respect for rules - a bad combination indeed. The most notorious is the time he Tasered his 10-year-old stepson (he "offered" to do the same to Palin's daughter Bristol, who witnessed this lunacy). Wooten himself - who has been married four times - tries to minimize the Taser incident but nonetheless admits it was terrible judgment:

He said that he was a new Taser instructor, and his stepson was asking him about the equipment. "I didn't shoot him with live, you know, actual live cartridge," Wooten said.

Instead, he said, he hooked his stepson up to a training aid "with little clips. And, you know, the Taser was activated for less than a second, which would be less than what you would get if you touched an electric fence. ... It was as safe as I could possibly make it."

He said his stepson was on the living room floor surrounded by pillows, that he "was bragging about it," and that the family laughed about it.

1. There is no probable cause to believe that Governor Palin violated the Alaska Executive Ethics Act by making the decision to dismiss Department of Public Safety Commissioner Monegan and offering him instead the position of Director of the Alaska Beverage Control Board.

2. There is no probable cause to believe that Governor Palin violated the Alaska Executive Ethics Act in any other respect in connection with the employment of Alaska State Trooper Michael Wooten.

3. There is no basis upon which to refer the conduct of Governor Palin to any law enforcement agency in connection with this matter because Governor Palin did not commit the offenses of Interference with Official Proceedings or Official Misconduct.

4. There is no probable cause to believe that any other official of state government violated any substantive provision of the Ethics Act.

5. There is no legal basis or jurisdiction for conducting a "Due Process Hearing to Address Reputational Harm" as requested by former Commissioner Walter Monegan.

6. The Amended Complaint by the PSEA should be dismissed.

7. Independent Counsel recommends that the appropriate agency of State government address the issue of the private use of e-mails for government work and revisit the record retention policies of the Governor's Office.

These findings differ from those of the Branchflower Report because Independent Counsel has concluded the wrong statute was used as a basis for the conclusions contained in the Branchflower Report, the Branchflower report misconstrued the available evidence and did not consider or obtain all of the material evidence that is required to properly reach findings.

We can pick over as we go the debates about the details here, but the argument that there's somehow a formal and uncontested finding that Gov. Palin acted unethically is now unsupportable.

An SEC Press Release issued today offers a clarification that may relieve institutions that feel compelled to use "mark to market" or "fair value" accounting for debt securities as to which there is no liquid market (I'll try to just offer a neutral description here; other people at my law firm will no doubt be offering our clients more detailed advice on this topic). This is just one aspect of the credit crisis, but MTM has acted as something of an accelerant for the financial troubles of institutions holding mortgage-backed securities for which there is no active market. Some people, mainly on the Right, have argued that suspending MTM would give needed breathing space and eliminate the need for Treasury to step in as market maker and buy up MBS, while others have argued that loosening the accounting rules just conceals the problem and delays the day of reckoning.

Anyway, today's statement offers at least some clarification that companies need not be rigidly tied in to market prices where there's no market:

When an active market for a security does not exist, the use of management estimates that incorporate current market participant expectations of future cash flows, and include appropriate risk premiums, is acceptable...The determination of fair value often requires significant judgment. In some cases, multiple inputs from different sources may collectively provide the best evidence of fair value.

The statement goes on to note that distressed sales may also not be the best evidence of fair value and deals with other indicia of value such as broker quotes and methods of determining impairment of an asset (recall that unlike, say, the New York Stock Exchange, markets for debt securities do not necessarily have instantaneous public price reporting of all transactions). This is one example of how the regulators are now acting to use the tools already at their disposal rather than wait for Congress to give definitive guidance.

A divided panel of the DC Circuit this morning, in Free Enterprise Fund v. Public Company Accounting Oversight Board, No. 07-5127 (D.C. Cir. Aug. 22, 2008), rejected a challenge to the Public Company Accounting Oversight Board's appointment on separation of powers grounds; because of the lack of a severability clause in Sarbanes-Oxley, the challenge presented the possibility that the court would have had to declare the entire statute unconstitutional. Judge Judith Rogers, joined by Judge Janice Rogers Brown, found that the statute did not unduly dilute the executive branch's control over the PCAOB:

We hold, first, that the Act does not encroach upon the Appointment power because, in view of the [SEC]'s comprehensive control of the Board, Board members are subject to direction and supervision of the Commission and thus are inferior officers not required to be appointed by the President. Second, we hold that the for-cause limitations on the Commission's power to remove Board members and the President's power to remove Commissioners do not strip the President of sufficient power to influence the Board and thus do not contravene separation of powers, as that principle embraces independent agencies like the Commission and their exercise of broad authority over their subordinates.

Slip op. at 3 (emphasis added). In short, the court found "no instance in which the Board can make policy that the Commission cannot override." Id. at 33. The court did, however, find that the constitutional challenge was properly presented and did not require exhaustion of administrative review procedures. Id. at 7-8. Judge Brett Kavanaugh dissented, on essentially similar grounds to Justice Scalia's masterful (but lone) dissent in the 1988 independent counsel case, Morrison v. Olson, although he also argued that the constitutional problems here go beyond those in Morrison:

The President's power to remove is critical to the President's power to control the Executive Branch and perform his Article II responsibilities. Yet under this statute, the President is two levels of for-cause removal away from Board members, a previously unheard-of
restriction on and attenuation of the President's authority over executive officers. This structure effectively eliminates any Presidential power to control the PCAOB, notwithstanding that the Board performs numerous regulatory and lawenforcement functions at the core of the executive power. So far as the parties, including the United States as intervenor, have been able to determine in the research reflected in their exhaustive and excellent briefs, never before in American history has there been an independent agency whose heads are appointed by and removable only for cause by another independent agency, rather than by the President or his alter ego. But that is the case with PCAOB members, who are removable for cause only by the SEC - and it is undisputed that the SEC as an independent agency is not the President's
alter ego.

Presumably, the plaintiffs will petition the Supreme Court for cert; it remains to be seen if the Court takes the case.

The full en banc 8th Circuit Court of Appeals handed a victory Friday to GOP Gov. Mike Rounds and the people of South Dakota, lifting an injunction sought by Planned Parenthood against a South Dakota statute that mandates disclosures to women seeking abortions about the consequences of their decisions, including disclosure of the fact that an "abortion will terminate the life of a whole, separate, unique, living human being." In no other area of the law is the Left so dedicated to preventing the full disclosure of facts to consumers. The 8th Circuit opinion, written by George W. Bush appointee Judge Raymond Gruender and joined by five other of President Bush's appointees to the bench, recognized Planned Parenthood's opposition to the disclosure of scientifically accurate facts for what it was.

[Planned Parenthood v.] Casey and Gonzales [v. Carhart] establish that, while the State cannot compel an individual simply to speak the State's ideological message, it can use its regulatory authority to require a physician to provide truthful, non-misleading information relevant to a patient's decision to have an abortion, even if that information might also encourage the patient to choose childbirth over abortion. Therefore, Planned Parenthood cannot succeed on the merits of its claim that Sec. 7(1)(b) violates a physician's right not to speak unless it can show that the disclosure is either untruthful, misleading or not relevant to the patient's decision to have an abortion.
Taken in isolation, Sec. 7(1)(b)'s language "[t]hat the abortion will terminate the life of a whole, separate, unique, living human being" certainly may be read to make a point in the debate about the ethics of abortion. Our role, however, is to examine the disclosure actually mandated, not one phrase in isolation. Planned Parenthood's evidence and argument rely on the supposition that, in practice, the patient will not receive or understand the narrow, species-based definition of "human being" in Sec. 8(4) of the Act, but we are not persuaded that this is so.

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The disclosure actually mandated by Sec. 7(1)(b), in concert with the definition in Sec. 8(4), is "[t]hat the abortion will terminate the life of a whole, separate, unique, living human being," Sec. 7(1)(b), and that "human being" in this case means "an individual living member of the species of Homo sapiens . . . during [its] embryonic [or] fetal age[]," Sec. 8(4). The State's evidence suggests that the biological sense in which the embryo or fetus is whole, separate, unique and living should be clear in context to a physician, cf. Gonzales, 127 S. Ct. at 1627 ("[B]y common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb."), and Planned Parenthood submitted no evidence to oppose that conclusion. Indeed, Dr. Wolpe's affidavit, submitted by Planned Parenthood, states that "to describe an embryo or fetus scientifically and factually, one would say that a living embryo or fetus in utero is a developing organism of the species Homo Sapiens which may become a self-sustaining member of the species if no organic or environmental incident interrupts its gestation." Wolpe Aff. Para. 6. This statement appears to support the State's evidence on the biological underpinnings of Sec. 7(1)(b) and the associated statutory definition. Planned Parenthood's only other evidence, Dr. Ball's affidavit, ignores the statutory definition of "human being." Finally, this biological information about the fetus is at least as relevant to the patient's decision to have an abortion as the gestational age of the fetus, which was deemed to be relevant in Casey. See 505 U.S. at 882. As a result, Planned Parenthood cannot meet even the less rigorous requirement to show a fair chance of prevailing, much less the more rigorous requirement applicable here to show that it is likely to prevail, on the merits of its claim that the disclosure required by Sec. 7(1)(b) is untruthful, misleading or not relevant to the decision to have an abortion.

[Footnote 9] The dissent recognizes that the term "human being" "may refer to purely biological characteristics." Post at 29. Section 8(4) of the Act does just that, defining "human being" as a "living member of the species Homo sapiens, including the unborn human being during the entire embryonic and fetal ages" for purposes of the required disclosure. Like the evidence submitted by Planned Parenthood, the dissent steadfastly ignores this biology-based definition and maintains that the required disclosure is ideological in nature and, therefore, unconstitutional. By ignoring the statutory definition of "human being," however, the dissent mischaracterizes the nature of the required disclosure and concludes that it compels a physician to answer the metaphysical question of when "human life" begins. Contrary to the dissent's analysis, the Act, when read in light of the nonmisleading statutory definition of "human being," does not require a physician to address whether the embryo or fetus is a "whole, separate, unique" "human life" in the metaphysical sense.

One of the ironies of the abortion debate is that the Supreme Court in 1973 departed from Constitutional text and tradition in large part because Harry Blackmun convinced himself that he was doing the best thing from a scientific and medical perspective (Roe was famously deferential to the wisdom of doctors and derived from Blackmun's background with the Mayo Clinic), yet the state of the science had marched relentlessly in favor of the pro-life position ever since, in terms of our knowledge about the unborn fetus and the time when the child can be viable outside the womb. Which is why the constitutional argument, already shorn of textual support, has tended to focus on precedent rather than factual reality. It's good to see another court recognize that reality.

TIME Magazine's Massimo Calabresi thinks that Barack Obama is being savvy in "moving to the center" by announcing that he sides with the conservative bloc of the Supreme Court (and at least to some extent against his own prior positions) in supporting the individual Second Amendment right to own guns and the death penalty for child rapists. Plainly, Obama is hoping for gullible reactions like that of Jay Newton-Small, who tells us:

Of course, there's little Obama would be able to do to about either ruling, even as president. So, his comments come purely as opinions that give voters an idea of where he stands on the political spectrum.

What he's hoping to avoid is the reaction of Andrew Hyman, who notes that Obama voted against Justices Roberts and Alito (who he now supposedly agrees with) and cited Justices Breyer, Ginsburg and Souter as model Justices even though he now disavows their views on these cases. As Hyman observes, don't watch what Obama says but what his preferred judges do. Because Obama sure as heck is not going to put people like John Roberts on the Supreme Court, and as Calabresi admits, Obama won't be eager to talk about that:

Obama's run to the center surely won't stop conservatives from using the specter of a Democratic-appointed Supreme Court to try to rally support. "Its pretty clear that if he's elected and Justice Scalia or Kennedy retires that he's going to appoint someone who's very likely to reverse [the gun control decision]," says Eugene Volokh, a professor at the UCLA School of Law. Given how Obama has been responding to the recent Supreme Court decisions, however, you're not likely to hear him talking about appointing liberal justices much between now and November.

For Republicans, the challenge will be to remind voters that a better, more predictable and less aggressively activist judiciary, leaving more space for democratic self-government and limiting its powers to protection of the express rights granted by the text of the Constitution, is the result of Republican governance, and that Obama's platitudes are meaningless and fleeting, whereas his judicial appointments would be hard-left and permanent. For Obama, the goal is to conceal as much as possible his real agenda in shaping the courts. Because putting people on the bench who are not committed to simply enforcing what the people have already agreed to is not a winning proposition.

Justice Alito's opinion this morning in Davis v. FEC won't get as much attention as Heller, and breaks a lot less new ground, simply holding that Congress can't set up one set of contribution-and-expenditure campaign finance rules for everyone and then a second set of rules giving an unequal advantage intended to 'level the playing field' for candidates whose opponents are able to self-finance all or part of their campaigns (the so-called "Millionaires' Amendment," one of the more egregiously incumbent-protective features of McCain-Feingold). The Court's 5-4 majority (you can guess the lineup) didn't tinker with any of the existing and misguided structure of campaign finance regulation that's existed since the 1976 Buckley v. Valeo opinion, as Justice Alito was careful to note that the parties had not asked the Court to reconsider Buckley. Instead, the Court rather pointedly told Congress that if it had made a mess of campaign finance regulation, that's Congress' problem, not the Court's.

First, the Court made clear that it wasn't buying Congress' justifications for the amendment:

The burden imposed by Sec. 319(a) on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption. The Buckley Court reasoned that reliance on personal funds reduces the threat of corruption, and therefore Sec. 319(a), by discouraging use of personal funds, disserves the anticorruption interest. Similarly, given Congress' judgment that liberalized limits for non-self-financing candidates do not unduly imperil anticorruption interests, it is hard to imagine how the denial of liberalized limits to self-financing candidates can be regarded as serving anticorruption goals sufficiently to justify the resulting constitutional burden.

Then, we get to the meat of Justice Alito's analysis:

The Government maintains that Sec. 319(a)'s asymmetrical limits are justified because they "level electoral opportunities for candidates of different personal wealth." ... Our prior decisions, however, provide no support for the proposition that this is a legitimate government objective...

The argument that a candidate's speech may be restricted in order to "level electoral opportunities" has ominous implications because it would permit Congress to arrogate the voters' authority to evaluate the strengths of candidates competing for office. ... Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to contribute to the outcome of an election. The Constitution, however, confers upon voters, not Congress, the power to choose the Members of the House of Representatives, Art. I, Sec. 2, and it is a dangerous business for Congress to use the election laws to influence the voters' choices.

Justice Alito also wasn't buying the idea that we have too darn much irresponsible political speech in this country:

Justice Stevens would revisit and reject Buckley's treatment of expenditure limits. ....The Government has not urged us to take that step, and in any event, Justice Stevens' proposal is unsound. He suggests that restricting the quantity of campaign speech would improve the quality of that speech, but it would be dangerous for the Government to regulate core political speech for the asserted purpose of improving that speech. And in any event, there is no reason to suppose that restricting the quantity of campaign speech would have the desired effect.

And the majority opinion made clear that if campaign finance reform is creating adverse unintended consequences (the law of unintended consequences not being subject to Congressional repeal), maybe Congress should rethink the whole apparatus, rather than create even more problems trying to fix the ones it's already created:

[T]he Government contends that Sec. 319(a) is justified because it ameliorates the deleterious effects that result from the tight limits that federal election law places on individual campaign contributions and coordinated party expenditures. These limits, it is argued, make it harder for candidates who are not wealthy to raise funds and therefore provide a substantial advantage for wealthy candidates. Accordingly, Sec. 319(a) can be seen, not as a legislative effort to interfere with the natural operation of the electoral process, but as a legislative effort to mitigate the untoward consequences of Congress' own handiwork and restore "the normal relationship between a candidate's financial resources and the level of popular support for his candidacy."

Whatever the merits of this argument as an original matter, it is fundamentally at war with the analysis of expenditure and contributions limits that this Court adopted in Buckley and has applied in subsequent cases. The advantage that wealthy candidates now enjoy and that Sec. 319(a) seeks to reduce is an advantage that flows directly from Buckley's disparate treatment of expenditures and contributions. If that approach is sound - and the Government does not urge us to hold otherwise - it is hard to see how undoing the consequences of that decision can be viewed as a compelling interest. If the normally applicable limits on individual contributions and coordinated party contributions are seriously distorting the electoral process, if they are feeding a "public perception that wealthy people can buy seats in Congress," Brief for Appellee 34, and if those limits are not needed in order to combat corruption, then the obvious remedy is to raise or eliminate those limits. But the unprecedented step of imposing different contribution and coordinated party expenditure limits on candidates vying for the same seat is antithetical to the First Amendment.

The majority made clear that the Court wouldn't stand in the way if Congress decided to get out of the business:

There is... no constitutional basis for attacking contribution limits on the ground that they are too high. Congress has no constitutional obligation to limit contributions at all; and if Congress concludes that allowing contributions of a certain amount does not create an undue risk of corruption or the appearance of corruption, a candidate who wishes to restrict an opponent's fundraising cannot argue that the Constitution demands that contributions be regulated more strictly. Consequently, if Sec. 319(a)'s elevated contribution limits applied across the board, Davis would not have any basis for challenging those limits.

Not a total victory for opponents of restrictions on free speech in political campaigns, by any means, but Davis at least suggests that a majority of the Supreme Court recognizes the pompous idiocy of campaign finance regulation for what it is.

The Supreme Court will hand down the DC gun control/Second Amendment case, DC v. Heller, this morning around 10am. I won't be covering the opinion when it comes down, but SCOTUSBlog will have the first breaking reports, and my RedState colleagues will be looking at the opinion and its political ramifications. (I had looked at the tea-leaf-reading predictions here and here).

LAW/POLITICS: 5-4 Supreme Court: Raping A Child Not Really As Bad As Democracy

The Supreme Court today, in Kennedy v. Louisiana, found that the Eighth Amendment bars the death sentence of a man who brutally raped his 8-year-old stepdaughter, causing traumatic physical injury (decency doesn't permit quoting here the Court's discussion of the facts on p. 2 of its opinion), to say nothing of the emotional trauma. The decision was 5-4, with Justice Kennedy writing the opinion joined by the Court's liberal bloc. The decision is significant in three major main ways:

1. It essentially bars the death penalty in all cases that do not result in the death of the victim, with the exception of "offenses against the State."

2. It explicitly confirms that the Court's reliance on an 'evolving national consensus' against the death penalty in specified circumstances is truly a one-way street; the Court frankly admits that unless there is strong evidence of a national consensus favoring the death penalty for a particular crime at a particular time, the Court will permanently bar every state from using the democratic process to impose such a penalty at any time in the future.

3. It rejects the notion that state legislatures are competent to come up with any sort of safeguards, a conclusion much in line with the Court's recent view that Congress is incapable of determining procedures for the handling of alleged enemy combatants. The assertion of judicial supremacy inherent in this conclusion is staggering.

Justice Kennedy's opinion began with a decidedly ahistorical reading of the Eighth Amendment, a document written at a time when basically all felonies were punishable by death:

[P]unishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution....It is the last of these, retribution, that most often can contradict the law's own ends. This is of particular concern when the Court interprets the meaning of the Eighth Amendment in capital cases. When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional commitment to decency and restraint.

Applying this view of the death penalty's permissible scope, the Court concluded that the rape of a child just isn't bad enough to justify an execution:

It must be acknowledged that there are moral grounds to question a rule barring capital punishment for a crime against an individual that did not result in death. These facts illustrate the point. Here the victim's fright, the sense of betrayal, and the nature of her injuries caused more prolonged physical and mental suffering than, say, a sudden killing by an unseen assassin. The attack was not just on her but on her childhood. For this reason, we should be most reluctant to rely upon the language of the plurality in Coker, which posited that, for the victim of rape, "life may not be nearly so happy as it was" but it is not beyond repair. ... Rape has a permanent psychological, emotional, and sometimes physical impact on the child. ...We cannot dismiss the years of long anguish that must be endured by the victim of child rape. It does not follow, though, that capital punishment is a proportionate penalty for the crime. The constitutional prohibition against excessive or cruel and unusual punishments mandates that the State's power to punish "be exercised within the limits of civilized standards."

Note that the Court offers no further explanation of why the death penalty is disproportionate to such a horrible crime. The Court's expressed concern for the awfulness of child rape is just so much window-dressing, to be given no real analytical weight against the ipse dixit of the present state of five 'consciences':

Consistent with evolving standards of decency and the teachings of our precedents we conclude that, in determining whether the death penalty is excessive, there is a distinction between intentional first-degree murder on the one hand and nonhomicide crimes against individual persons, even including child rape, on the other. The latter crimes may be devastating in their harm, as here, but "in terms of moral depravity and of the injury to the person and to the public," ...they cannot be compared to murder in their "severity and irrevocability."

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Evolving standards of decency that mark the progress of a maturing society counsel us to be most hesitant before interpreting the Eighth Amendment to allow the extension of the death penalty, a hesitation that has special force where no life was taken in the commission of the crime. It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restraint in the application of capital punishment.

The Court left for another day, however, the death penalty as applied to crimes that extend beyond individual victims:

We do not address, for example, crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.

Now, personally, I have a good deal of sympathy with the idea that, for a variety of reasons, the death penalty is best employed against these sorts of crimes. But it's revealingly statist as well as inhumanly insensitive and legally nonsensical to impose a rule of Constitutional dimension that says that dealing drugs is worse than raping a child.

The Court examined the evidence of such movement and found it - like so many things in the democratic process - fitful and inconclusive:

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions - 36 States plus the Federal Government - have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.

In general, this sort of nose-counting is precisely the stuff of the democratic process and no business of the judiciary. But the Court determines that there are simply not enough states to stand in its way:

Respondent insists that the six States where child rape is a capital offense, along with the States that have proposed but not yet enacted applicable death penalty legislation, reflect a consistent direction of change in support of the death penalty for child rape. Consistent change might counterbalance an otherwise weak demonstration of consensus. .... But whatever the significance of consistent change where it is cited to show emerging support for expanding the scope of the death penalty, no showing of consistent change has been made in this case.

How does the Court respond to the lack of a consensus? By finding that a consensus to the contrary must exist!

After reviewing the authorities informed by contemporary norms, including the history of the death penalty for this and other nonhomicide crimes, current state statutes and new enactments, and the number of executions since 1964, we conclude there is a national consensus against capital punishment for the crime of child rape.

Well, as long as five Justices count the votes, what are you going to do about it? The majority expressly rejects the idea that the messy business of finding consensuses should be left to the representatives of the people whose "consensus" is being announced, and instead announces a default presumption against the death penalty wherever a clear national consensus does not exist in its favor, regardless of the consensus within individual states:

[The difficulty of determining the direction of the states] has led some Members of the Court to say we should cease efforts to resolve the tension and simply allow legislatures, prosecutors, courts, and juries greater latitude. ...Our response to this case law, which is still in search of a unifying principle, has been to insist upon confining the instances in which capital punishment may be imposed.

Note that the lack of "a unifying principle" does not restrain the Court from reaching a conclusion that is both categorical and intended to be a permanent restraint on further evolution of the People's consensus:

Our determination that there is a consensus against the death penalty for child rape raises the question whether the Court's own institutional position and its holding will have the effect of blocking further or later consensus in favor of the penalty from developing. The Court, it will be argued, by the act of addressing the constitutionality of the death penalty, intrudes upon the consensus-making process. By imposing a negative restraint, the argument runs, the Court makes it more difficult for consensus to change or emerge. The Court, according to the criticism, itself becomes enmeshed in the process, part judge and part the maker of that which it judges. These concerns overlook the meaning and full substance of the established proposition that the Eighth Amendment is defined by "the evolving standards of decency that mark the progress of a maturing society."... Confirmed by repeated, consistent rulings of this Court, this principle requires that use of the death penalty be restrained. The rule of evolving standards of decency with specific marks on the way to full progress and mature judgment means that resort to the penalty must be reserved for the worst of crimes and limited in its instances of application.

The reference to "full progress and mature judgment" is a particularly ominous one for fans of popular self-government and limitation of the Court's powers to those enumerated by prior agreement of We the People.

Ironically, the Court also bats away the suggestion that some states may have feared to enact the death penalty due to suggestions in prior decisions that it could be struck down:

[R]espondent contends, it is possible that state legislatures have understood Coker to state a broad rule that covers the situation of the minor victim as well. We see little evidence of this. Respondent cites no reliable data to indicate that state legislatures have read Coker to bar capital punishment for child rape and, for this reason, have been deterred from passing applicable death penalty legislation. In the absence of evidence from those States where legislation has been proposed but not enacted we refuse to speculate about the motivations and concerns of particular state legislators.

Note that the Court is comfortable finding a consensus of the people, but not discerning the intentions of legislatures.

The position of the state courts, furthermore, to which state legislators look for guidance on these matters, indicates that Coker has not blocked the emergence of legislative consensus.

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We conclude on the basis of this review that there is no clear indication that state legislatures have misinterpreted Coker to hold that the death penalty for child rape is unconstitutional. The small number of States that have enacted this penalty, then, is relevant to determining whether there is a consensus against capital punishment for this crime.

3. Never Trust The Legislature

The final piece of the Court's holding that I'll deal with only briefly here is its concern that the death penalty could not be applied with sufficient safeguards to child rape, given the relative (national) rarity of its application:

Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.

Once again, the Court simply does not trust legislatures, unlike courts, to deliberate and develop rules and standards. But those state legislatures simply do not have five votes.

As Chief Justice Roberts pointed out, the core issue in today's detainee decision is the struggle between the power of Congress and the power of the courts: it's not whether the U.S. has the right to detain enemy combatants, and not whether non-U.S. citizen detainees have access to legal process to challenge their detention, but simply whether Congress has a right to define and limit those procedures (as it did by statute in 2005 and 2006), or whether the Supreme Court has absolute authority to require that all procedural rules be determined by the district courts and reviewed by the Supreme Court. For this President and his successor, however, the bottom-line question remains what to do with enemy combatants: continue to hold them at Guantanamo or some similar facility subject to the new procedures, go back to Congress for yet another set of rules, or perhaps ship more detainees off to other countries to handle in their own way.

In a serious world, we'd expect presidential candidates to present competing visions of how to answer both sets of questions. But the responses of the McCain and Obama campaigns to today's decision shows that each is too busy struggling in their own ways with the politics of this issue to address it meaningfully.

Let's start by noting the fact that the two statutes struck down by the Court today were passed by the U.S. Senate, in which both candidates sit. The Detainee Treatment Act of 2005, a rider to military appropriations, among other things provided a set of procedures, and limited judicial review, for detainees challenging their enemy combatant status. It passed 90-9, with both McCain and Obama voting in favor. The Court today held "those procedures are not an adequate and effective substitute for habeas corpus." The Military Commissions Act of 2006 specifically precluded the DTA's procedures from being evaded by recourse to habeas corpus review, and eliminated the Supreme Court's jurisdiction over such cases; it passed 65-34, with McCain voting in favor and Obama voting against. The Court held today that the MCA "operates as an unconstitutional suspension of the writ."

How did the candidates respond to the decision? First, the McCain response, as related by Michael Goldfarb at the McCain Report (the excellent official campaign blog):

SEN. JOHN MCCAIN: It obviously concerns me. These are unlawful combatants, they are not American citizens, but -- and I think that we should pay attention to [Chief J]ustice Roberts' opinion in this decision -- but it is a decision the Supreme Court has made. Now we need to move forward. As you know, I always favored closing of Guantanamo Bay and I still think that we ought to do that.

McCain's position has always been that these people do not "deserve the protections of the kind of judicial process that a citizen of the United States would have." This is also the position of Chief Justice John Roberts, who dissented from today's ruling, noting that the process already in place included "the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants."

The rest of Goldfarb's post smacks Obama for voting against Roberts. You can tell that Goldfarb would like to go harder after the Court's decision, but the campaign and the candidate are constrained by McCain's own Gitmo-bashing, and so while McCain's response sides with Roberts and the statutes McCain voted for, it has to be somewhat muted on the pragmatic consequences of the decision because McCain isn't really clear on what he himself would do with those detainees.

Obama, meanwhile, is off in his own little world, unconstrained by the facts but therefore unwilling or unable to confront McCain over McCain's actual position:

Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain.

It's not clear what Obama means here. First, if the DTA's procedures are themselves "a legal black hole," and if he agrees with the Court that they are inadequate to satisfy due process, why on earth did Obama vote for them? Second, he's ripping McCain for "support" of Bush's Guantanamo policy, completely ignoring the fact that McCain has been calling for some time for shuttering the place. Third, if Obama means that McCain "supported" Bush's policy by voting for the DTA and the MCA, what about Obama's own vote for the DTA?

I don't have nearly the time and space here to do justice to today's opinions on enemy combatants, starting with the decision in Boumediene v. Bush, extending habeas corpus to foreign nationals detained at Guantanamo (which I partially summarized over at RedState as it broke, before I had to stop to deal with a decision of the Court in which I was directly involved). I'd highly recommend the scathing dissents of Chief Justice Roberts, who explains why the Court should not have decided that the Congressionally enacted procedures provided to detainees were inadequate without either (1) seeing how those procedures worked in practice or (2) explaining in any detail how the procedures required by the Court would be different, and Justice Scalia, who explains why the Court got the basic question of the historical scope of habeas wrong and illustrates the lethal consequences of today's decision.

But I'd like to highlight two points from today's opinions that illustrate some unintended consequences, and why in the end they may not accomplish the results claimed for them. Specifically, today's decisions will hasten the process of handing off detainees to foreign governments while protracting rather than accelerating the legal process for determining the status of detainees.

The first comes from the Court's less-publicized unanimous decision today in Munaf v. Geren, which held that while habeas extends to U.S. citizens detained by the Multinational Force-Iraq, the writ cannot be used to prevent the U.S. from transferring U.S. citizen detainees to the Iraqi government if it has warrants for their arrest for, essentially, being enemy combatants:

Munaf and Omar are alleged to have committed hostile and warlike acts within the sovereign territory of Iraq during ongoing hostilities there. Pending their criminal prosecution for those offenses, Munaf and Omar are being held in Iraq by American forces operating pursuant to a U. N. Mandate and at the request of the Iraqi Government. Petitioners concede that Iraq has a sovereign right to prosecute them for alleged violations of its law. Yet they went to federal court seeking an order that would allow them to defeat precisely that sovereign authority. Habeas corpus does not require the United States to shelter such fugitives from the criminal justice system of the sovereign with authority to prosecute them.

(Presumably, the same rule would apply to non-citizens). This, despite the fact that the Iraqi justice system is obviously not precisely equivalent to our own in terms of procedural protections. The Court also rejected the idea that a U.S. court could prevent transfer of the prisoners based on their claim that they might be tortured by the Iraqis, although the Court did note that there was not a record of a likelihood of torture, and three Justices would have left the door open for courts to review "whether substantive due process bars the Government from consigning its own people to torture."

What does this mean? Well, it means that detainees at Guantanamo could be transferred out of the reach of the new habeas process if the governments of Afghanistan, Iraq or other allies (some of whom have been known to swiftly behead such people upon their transfer) request that we do so. In other words, if the new procedures prove onerous in practice or run the risk of revealing classified information to our enemies, the unintended consequence of the decision to strike down procedures enacted by the U.S. Congress may be instead to substitute procedures provided by the Afghan or Iraqi governments. (Can you say, "rendition," boys and girls? I knew you could!) Even five Justices of the U.S. Supreme Court cannot repeal the law of unintended consequences.

The second point, on the question of swift justice, is explained by the Chief Justice in Boumediene:

The Court is ... concerned that requiring petitioners to pursue "DTA review before proceeding with their habeas corpus actions" could involve additional delay. ...The nature of the habeas remedy the Court instructs lower courts to craft on remand, however, is far more unsettled than the process Congress provided in the DTA. See ante, at 69 ("[O]ur opinion does not address the content of the law that governs petitioners' detention. That is a matter yet to be determined"). There is no reason to suppose that review according to procedures the Federal Judiciary will design, case by case, will proceed any faster than the DTA process petitioners disdained.
On the contrary, the system the Court has launched (and directs lower courts to elaborate) promises to take longer. The Court assures us that before bringing their habeas petitions, detainees must usually complete the CSRT process.... Then they may seek review in federal district court. Either success or failure there will surely result in an appeal to the D. C. Circuit - exactly where judicial review starts under Congress's system. The effect of the Court's decision is to add additional layers of quite possibly redundant review. And because nobody knows how these new layers of "habeas" review will operate, or what new procedures they will require, their contours will undoubtedly be subject to fresh bouts of litigation. If the majority were truly concerned about delay, it would have required petitioners to use the DTA process that has been available to them for 2 1/2 years, with its Article III review in the D. C. Circuit. That system might well have provided petitioners all the relief to which they are entitled long before the Court's newly installed habeas review could hope to do so.

Of course, the question as to whether additional delay is a bad thing depends on whose intentions are at stake. For a detainee who is actually improperly held in custoday, delay is a bad thing, because it means more time in Gitmo. But for those who are genuinely enemy combatants, more delay is wonderful - more ability to tie up U.S. personnel and resources in courtroom battles, more publicity for their "cause," more grinding down of U.S. morale as expensive court proceedings drag on and provide political fodder for critics of the mission and the military. Like the exclusionary rule in criminal procedure (which excludes illegally seized evidence of guilt but gives no remedy to the innocent), the Court has managed to create a perverse system that burdens anyone who might actually be deserving of a remedy, while rewarding those who seek to game the system to the disadvantage of the nation. Gee, thanks.

You know, I'm not really an expert on this particular corner of antitrust law, so maybe I'm missing a good, persuasive argument for why this rule makes sense, but I have to express some cognitive dissonance at the Sixth Circuit throwing out a lawsuit by a former Kentucky assistant football coach on the grounds, among others, that the NCAA rule enforcement process is not subject to the antitrust laws because it does not involve commercial activity:

In order to state a claim under the Sherman Act there must be a commercial activity implicated....the appropriate inquiry is whether the rule itself is commercial, not whether the entity promulgating the rule is commercial.... Although the question before us is whether the
enforcement activities of NCAA violate the Sherman Act and not a particular rule, the analysis must focus on the enforcement action itself and not NCAA as a commercial entity....Bassett's Complaint contains considerable information on the size and scope of college football and the revenues generated by it. The Complaint is wholly devoid of any allegation on the commercial nature of NCAA's enforcement of the rules it determined Bassett had violated. Bassett's Complaint contends NCAA's enforcement process violated its own due process requirements and, as a result, constitutes a Sherman Act violation. We find Bassett's Complaint lacks the critical commercial activity component required to permit application of the Sherman Act.

...NCAA's rules on recruiting student athletes, specifically those rules prohibiting improper inducements and academic fraud, are all explicitly noncommercial. In fact, those rules are anti-commercial and designed to promote and ensure competitiveness amongst NCAA member schools. Violation of the applicable NCAA rules gives the violator a decided competitive advantage in recruiting and retaining highly prized student athletes. It also violates the spirit of amateur athletics by providing remuneration to athletes in exchange for their commitments to play for the violator's football program. Finally, violators of these rules harm the student-athlete academically when coaches and assistants complete coursework on behalf of the student-athlete.

If the rules themselves and the corresponding sanctions are not commercial, as the reasoning
in Smith supports, then the enforcement of those rules cannot be commercial. As long as the
enforcement of non-commercial rules is reasonably and rationally related to the rules themselves, we find enforcement is a non-commercial activity.

I'm not saying the rule should be different, since there is much to be said for keeping NCAA decisions of this nature from turning into federal lawsuits. But one gets the sense that the salami is being sliced rather narrowly here.

While at a ballpark, plaintiff sustained injuries when a baseball player in an off-field on-deck batting circle struck her with a bat. Because plaintiff concededly observed batting equipment and players swinging bats in the area where the accident occurred, the Appellate Division correctly held that she had assumed the risk of her injuries, and properly affirmed the
Supreme Court order dismissing the complaint.

The fact description is pretty sparse, but this seems a sensible enough rule at least in cases where the batter didn't throw the bat and she just got too close to somebody swinging a bat.

The U.S. Supreme Court on Monday declined to hear an appeal by Major League Baseball Advanced Media and the players association in their case against CDM Fantasy Sports. The justices' decision ends a bitter legal fight that lasted more than three years.

St. Louis-based CDM in 2006 won the right in federal district court to use major league players' names and statistics in commercial fantasy games without a license. That set off a lengthy series of appeals from MLBAM and the union that mushroomed into a case with significant implications for all of celebrity licensing.

In case you missed it yesterday morning - opinion in Bloomberg v. Beretta U.S.A. here. Basically, the court found that the federal Protection of Lawful Commerce in Arms Act is a constitutional exercise of Congress' Commerce power, doesn't violate the 10th Amendment, and bars New York City's lawsuit seeking under state law to enjoin gun manufacturers' lawful firearms sales on the grounds that those sales resulted in diversion of guns to the black market.

The Supreme Court this morning, by a 6-3 vote in Crawford v. Marion County Elec. Bd., upheld Indiana's voter ID law. This is a major defeat for the Democrats' efforts to prevent states from requiring valid identification to vote. The lawsuit was brought by the Indiana Democratic Party.

Justice Scalia's separate opinion is redolent of the judicial hangover from Bush v. Gore in its emphasis on the hazards of permitting case-by-case judicial review of neutral rules established by state legislatures before an election takes place. This is a point I've been making since the Bush v. Gore decision came down: the most important thing about that case is the fact that the SCOTUS was reviewing a non-statutory judicial remedy crafted by an appellate court after the election had taken place, when all the participants knew - or at least thought they knew - what remedies would benefit which candidates, as opposed to a statute of general applicability enacted before the election, setting out rules and procedures that all participants knew from Day One they would have to comply with.

Extended excerpts from the Stevens and Scalia opinions, and commentary, below the fold. Note that this is the third election-law case this Term (I discussed the first two here and here), and the democratically-enacted statute won in each case.

[E]ven rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications.... [H]owever, we [have] confirmed the general rule that "evenhanded restrictions that protect the integrity and reliability of the electoral process itself" are not invidious ...Rather than applying any "litmus test" that would neatly separate valid from invalid restrictions, ... a court must identify and evaluate the interests put forward by the State as justifications for the burden imposed by its rule, and then make the "hard judgment" that our adversary system demands.

Justice Stevens then addressed the case at bar:

While petitioners argue that the statute was actually motivated by partisan concerns and dispute both the significance of the State's interests and the magnitude of any real threat to those interests, they do not question the legitimacy of the interests the State has identified.

+++

The first is the interest in deterring and detecting voter fraud. The State has a valid interest in participating in a nationwide effort to improve and modernize election procedures that have been criticized as antiquated and inefficient. [See National Commission on Federal Election Reform, To Assure Pride and Confidence in the Electoral Process 18 (2002) (with Honorary Co-chairs former Presidents Gerald Ford and Jimmy Carter).]

Justice Stevens quoted at length from that report, thus providing a rare example of such a bipartisan commission coming to some good (Justice Breyer would have placed equally strong weight on some of the commission's specific recommendations). He also cited the two recent federal enactments on voting procedures. He also noted that there was sufficient evidence that voter fraud happens to justify the state in trying to prevent it:

It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation's history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana's own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor - though perpetrated using absentee ballots and not in-person fraud - demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.

There is no question about the legitimacy or importance of the State's interest in counting only the votes of eligible voters. Moreover, the interest in orderly administration and accurate recordkeeping provides a sufficient justification for carefully identifying all voters participating in the election process. While the most effective method of preventing election fraud may well be debatable, the propriety of doing so is perfectly clear.

+++

Judge Barker cited record evidence containing examples from California, Washington, Maryland, Wisconsin, Georgia, Illinois, Pennsylvania, Missouri, Miami, and St. Louis. The Brief of Amici Curiae Brennan Center for Justice et al. in Support of Petitioners addresses each of these examples of fraud. While the brief indicates that the record evidence of in-person fraud was overstated because much of the fraud was actually absentee ballot fraud or voter registration fraud, there remain scattered instances of in-person voter fraud. For example, after a hotly contested gubernatorial election in 2004, Washington conducted an investigation of voter fraud and uncovered 19 "ghost voters." ....After a partial investigation of the ghost voting, one voter was confirmed to have committed in-person voting fraud.

Soren Dayton has more on the East Chicago case, which resulted in 45 convictions. Turning to the challenge to the statute's requirements, Justice Stevens noted that some groups may be unduly burdened but found an insufficient basis to invalidate the entire statute on the record before the Court - thus leaving open the possibility of future challenges:

The burdens that are relevant to the issue before us are those imposed on persons who are eligible to vote but do not possess a current photo identification that complies with the requirements of SEA 483.16 The fact that most voters already possess a valid driver's license, or some other form of acceptable identification, would not save the statute under our reasoning in Harper, if the State required voters to pay a tax or a fee to obtain a new photo identification. But just as other States provide free voter registration cards, the photo identification cards issued by Indiana's BMV are also free. For most voters who need them, the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of voting.

Both evidence in the record and facts of which we may take judicial notice, however, indicate that a somewhat heavier burden may be placed on a limited number of persons. They include elderly persons born out-of-state, who may have difficulty obtaining a birth certificate; persons who because of economic or other personal limitations may find it difficult either to secure a copy of their birth certificate or to assemble the other required documentation to obtain a state-issued identification; homeless persons; and persons with a religious objection to being photographed. If we assume, as the evidence suggests, that some members of these classes were registered voters when SEA 483 was enacted, the new identification requirement may have imposed a special burden on their right to vote.

The severity of that burden is, of course, mitigated by the fact that, if eligible, voters without photo identification may cast provisional ballots that will ultimately be counted. To do so, however, they must travel to the circuit court clerk’s office within 10 days to execute the required affidavit. It is unlikely that such a requirement would pose a constitutional problem unless it is wholly unjustified. And even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek in this litigation.

+++

Petitioners ask this Court, in effect, to perform a unique balancing analysis that looks specifically at a small number of voters who may experience a special burden under the statute and weighs their burdens against the State’s broad interests in protecting election integrity....But on the basis of the evidence in the record it is not possible to quantify either the magnitude of the burden on this narrow class of voters or the portion of the burden imposed on them that is fully justified.

+++

Finally we note that petitioners have not demonstrated that the proper remedy—even assuming an unjustified burden on some voters—would be to invalidate the entire statute. When evaluating a neutral, nondiscriminatory regulation of voting procedure, we must keep in mind that a ruling of unconstitutionality frustrates the intent of the elected representatives of the people.

Finally, Justice Stevens rejected the argument that the statute is improper because of a partisan motivation:

It is fair to infer that partisan considerations may have played a significant role in the decision to enact SEA 483. If such considerations had provided the only justification for a photo identification requirement, we may also assume that SEA 483 would suffer the same fate as the poll tax at issue in Harper.

But if a nondiscriminatory law is supported by valid neutral justifications, those justifications should not be disregarded simply because partisan interests may have provided one motivation for the votes of individual legislators.

Justice Scalia argued that the Court's precedents, the constitutional text and the practicalities of election litigation argued for a more sweeping rule deferring to state legislatures:

The lead opinion assumes petitioners' premise that the voter-identification law "may have imposed a special burden on" some voters... but holds that petitioners have not assembled evidence to show that the special burden is severe enough to warrant strict scrutiny, ... That is true enough, but for the sake of clarity and finality (as well as adherence to precedent), I prefer to decide these cases on the grounds that petitioners' premise is irrelevant and that the burden at issue is minimal and justified.

+++

The Indiana law affects different voters differently, ... but what petitioners view as the law's several light and heavy burdens are no more than the different impacts of the single burden that the law uniformly imposes on all voters. To vote in person in Indiana, everyone must have and present a photo identification that can be obtained for free. The State draws no classifications, let alone discriminatory ones, except to establish optional absentee and provisional balloting for certain poor, elderly, and institutionalized voters and for religious objectors. Nor are voters who already have photo identifications exempted from the burden, since those voters must maintain the accuracy of the information displayed on the identifications, renew them before they expire, and replace them if they are lost.

+++

This is an area where the dos and don'ts need to be known in advance of the election, and voter-by-voter examination of the burdens of voting regulations would prove especially disruptive. A case-by-case approach naturally encourages constant litigation. Very few new election regulations improve everyone's lot, so the potential allegations of severe burden are endless. A State reducing the number of polling places would be open to the complaint it has violated the rights of disabled voters who live near the closed stations. Indeed, it may even be the case that some laws already on the books are especially burdensome for some voters, and one can predict lawsuits demanding that a State adopt voting over the Internet or expand absentee balloting.

That sort of detailed judicial supervision of the election process would flout the Constitution's express commitment of the task to the States. See Art. I, §4. It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class. Judicial review of their handiwork must apply an objective, uniform standard that will enable them to determine, ex ante, whether the burden they impose is too severe.

(Italics in original).

Justice Souter's dissent complains about the absence of public transportation in Indiana and why the new requirements had to be phased in immediately.

UPDATE:Allahpundit looks at Justice Souter's argument that the travel time to the DMV imposes an unconstitutional burden on the right to vote:

Do note that if you take the left seriously here, the act of voting itself arguably imposes an unconstitutional burden: As with a trip to the DMV, it requires leaving work, traveling, and waiting on line for an unknown amount of time. The only difference between the two is having to scrounge around for a copy of your birth certificate.

As consumer, employee and other groups carefully build momentum in Congress for changes in the nation's arbitration landscape and business groups just as carefully organize their opposition, a new empirical study reports a "disturbing trend" at the state level: state courts vacating many arbitration awards for employees, but not for employers.

See, here's the thing: if the statistics were the opposite, these same people would be arguing (as they do in with other types of arbitration) that the arbitration panels are biased against them, and they'd cite the reversal rates by the courts as evidence that the arbitrators were less fair than a court would be.

In fact, overall statistics of this nature are famously uninformative because they assume a static universe in which the cases decided by arbitrators or the courts are a representative, evenly divided sample. But there are numerous ways in which data can be biased - just for example:

*If a forum is more favorable to plaintiffs, it may attract more weak or frivolous cases, and thus end up with a higher rate of defense victories - sort of the way outfielders with weak arms get a lot of assists because a lot of people run on them (between 1993 and 2003, Mike Piazza threw out 384 base thieves, Pudge Rodriguez threw out 387 - if you looked just at the total number thrown out, you might draw a very bad conclusion).

*Highly meritorious cases are much more likely to settle, especially in arbitration where plaintiffs are less likely to hold out for massive punitive damages. But the prevalance of nuisance-value settlements means it's also impossible to use settlement data as a reliable proxy for the merits, especially if you lack the means to assess the value of the settlement.

*Defendants who are repeat players (in employment litigation, that's pretty much every business) may be more likely to go to court to challenge awards they are dissatisfied with than employees represented by attorneys working on commission.

*Cases can settle at any stage of the process, so these numbers also don't include cases where a settlement is reached somewhere between the arbitration award and the court decision reviewing it. A defendant who wins in arbitration but faces a likelihood of reversal in court may very well decide to settle the case while the getting is good.

That's even before you get into the asymmetries here - in most employment cases the employee is the plaintiff, who has the burden of proof, a fact that will impact review of the award. The fact is, there are many points in litigation at which decisions can be made by one or both sides about what avenue to pursue next, and each of those decision-points can skew the sample.

As Justice Stevens explains, "'objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.'" .... "I have relied on my own experience in reaching the conclusion that the imposition of the death penalty" is unconstitutional.

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of Justice Stevens' experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress - who retain the death penalty as a form of punishment - is dismissed as "the product of habit and inattention rather than an acceptable deliberative process." Ante, at 8. The experience of social scientists whose studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a "thirst for vengeance." Ante, at 11. It is Justice Stevens' experience that reigns over all.

Now, take note here; it's not Justice Scalia in this debate who wants to take the issue of the death penalty away from the people of Kentucky and make it a matter to be determined by presidential appointees; it's Justice Stevens. I think a lot of Americans wish that we had presidential politics free of hot-button cultural issues, but it's not conservatives who are the main obstacle to doing that. Yet if you listened to Senator Obama last night, he would still have you believe that there's something wrong with voters who care about the rights and democratic privileges that people like Senator Obama want to bring under federal control:

[P]eople are going through very difficult times right now. And we are seeing it all across the country. And that was true even before the current economic hardships ...And so the point I was making was that when people feel like Washington's not listening to them, when they're promised year after year, decade after decade, that their economic situation is going to change and it doesn't, then, politically, they end up focusing on those things that are constant like religion.

They end up feeling this is a place where I can find some refuge. This is something I can count on. They end up being much more concerned about votes around things like guns, where traditions have been passed on from generation to generation. And those are incredibly important to them. And, yes, what is also true is that wedge issues, hot-button issues, end up taking prominence in our politics.

And part of the problem is that when those issues are exploited, we never get to solve the issues that people really have to get some relief on, whether it's health care or education or jobs.

In other words, you're only supposed to vote about what Obama says you should vote about - even when Washington is busy meddling in other areas of life. On the "wedge issues," people who agree with Obama should just be given a free hand. (It's also rather rich for Obama to suggest that guns should not be a political issue given his own record of voting to restrict gun ownership - I guess he cast those votes because he was too bitter to stick to economic issues, eh?).

Cases like Baze vividly illustrate that, for the foreseeable future, the Presidential power to appoint federal judges will have an outsized impact on the resolution of "hot-button" or "wedge" issues. I understand full well why, given the unpopularity of "rule by judicial fiat" for liberal ends, Senator Obama doesn't want voters to consider those aspects of the president's powers in voting for who the president should be. But I very much doubt that most voters are such ignorant rubes that they don't realize that a President Obama would be quite happy to use his powers to advance his own values, not theirs.

LAW/POLITICS: Mumia Abu-Jamal Is Still Guilty of Murder. Police Officer Daniel Faulkner Is Still Dead.

On Thursday, the U.S. Court of Appeals for the Third Circuit affirmed yet again the 1982 conviction of the man who calls himself Mumia Abu-Jamal for murdering Philadelphia Police Officer Daniel Faulkner, who Abu-Jamal took from his family more than 26 years ago. That conviction was upheld on direct appeal in 1989, an appeal the U.S. Supreme Court refused to hear at the time, but has been the subject of successive habeas corpus petitions ever since, this one supported by the efforts of a flotilla of lawyers with apparently nothing better to do from, among others, Widener University School of Law, The NAACP Legal Defense and Educational Fund, Inc., and the Criminal Justice Institute at Harvard Law School (the latter appearing on behalf of the National Lawyers Guild, National Conference of Black Lawyers, International Association of Democratic Lawyers, Charles Hamilton Houston Institute for Race & Justice of Harvard Law School, Southern Center for Human Rights, and National Jury Project). The court did, however, vacate the death sentence handed down by the jury in 1982 and the death warrant signed by Governor Tom Ridge in 1995, and remanded for a new penalty proceeding. I have not plowed through the entirety of the court's 118-page opinion, which deals with Abu-Jamal's challenges to the jury selection and the prosecutor's closing argument as well as the penalty phase, but it's worth reading the introduction to be reminded just what a cold-blooded killer and political extremist Abu-Jamal was and is, and how utterly meritless is the suggestion that he is anything but guilty. I excerpt here at length:

On December 9, 1981, between three thirty and four o'clock in the morning, Philadelphia Police Officer Daniel Faulkner made a traffic stop of a Volkswagen driven by William Cook, Abu-Jamal's brother, on Locust Street between 12th and 13th Streets, in Philadelphia. Officer Faulkner radioed for backup assistance, and both men exited their vehicles. A struggle ensued, and Officer Faulkner tried to secure Cook's hands behind his back. At that moment, Abu-Jamal, who was in a parking lot on the opposite side of the street, ran toward Officer Faulkner and Cook. As he approached, Abu-Jamal shot Officer Faulkner in the back. As Officer Faulkner fell to the ground, he was able to turn around, reach for his own firearm, and fire at Abu-Jamal, striking him in the chest. Abu-Jamal, now standing over Officer Faulkner, fired four shots at close range. One shot struck Officer Faulkner between the eyes and entered his brain.

Within a minute of Officer Faulkner's radio call, Officers Robert Shoemaker and James Forbes responded. Robert Chobert, a taxi cab driver who had just let out a passenger at 13th and Locust, stopped the officers before they arrived at the scene and notified them an officer had just been shot. Officer Shoemaker then approached the parked Volkswagen on foot and observed Abu-Jamal sitting on the curb. Despite Officer Shoemaker's repeated orders to freeze, Abu-Jamal did not remain still and reached for an object Officer Shoemaker could not yet identify. As Officer Shoemaker inched closer, he saw a revolver on the ground close to Abu-Jamal's hand. Officer Shoemaker kicked Abu-Jamal in the chest to move him away from the gun, and then kicked the gun out of Abu-Jamal's reach. Officer Shoemaker then motioned for Officer Forbes to watch Abu-Jamal while Shoemaker attended to Officer Faulkner. During this time, Officer Forbes also searched Cook, who had remained at the scene and was standing near the wall of an adjacent building. Cook made only a single statement: "I had nothing to do with it."

Additional officers arrived on the scene. Officer Faulkner was immediately rushed to Thomas Jefferson University Hospital, where he was later pronounced dead. Officers took Abu-Jamal into custody. He resisted arrest while officers moved him to a police van and tried to handcuff him. Abu-Jamal was also taken to Thomas Jefferson University Hospital. While Abu-Jamal was waiting for treatment in the emergency room's lobby, Priscilla Durham, a security guard on duty at the hospital, heard Abu-Jamal twice repeat, "I shot the motherf***er, and I hope the motherf***er dies." Officer Gary Bell also heard Abu-Jamal make this statement. Hospital personnel then took Abu-Jamal into the emergency room for treatment.

Officer Forbes recovered two weapons from the scene. A standard police-issue Smith & Wesson .38 caliber Police Special revolver, registered and issued to Officer Faulkner, with one spent Remington .38 special cartridge, was found on the street about five feet away from Officer Faulkner. Ballistic testing later confirmed the bullet that struck Abu-Jamal was fired from Officer Faulkner's revolver.A Charter Arms .38 caliber revolver containing five "Plus-P" high-velocity spent cartridges was found on the sidewalk near Abu-Jamal. Abu-Jamal had purchased this revolver in June 1979 and it was registered in his name. Officer Anthony Paul, supervisor of the Firearms Identification Unit in the Laboratory Division of the Philadelphia Police Department, testified at trial that the bullet recovered from Officer Faulkner's head was badly mutilated and could not be matched with a specific firearm. Officer Paul also testified that the recovered bullet specimen had eight lands and grooves with a right hand direction of twist, which was consistent with a bullet fired from a Charter Arms revolver.

The Commonwealth presented four eye-witnesses at trial. Cynthia White testified she saw Abu-Jamal run out of a parking lot on Locust Street as Officer Faulkner attempted to subdue Cook, and saw Abu-Jamal shoot Officer Faulkner in the back. She testified she then watched Officer Faulkner stumble and fall, and then saw Abu-Jamal hover over Officer Faulkner, shoot him a few more times at a close distance, and then sit down on the curb. Robert Chobert testified he heard a shot, looked up, saw Officer Faulkner fall to the ground, and then saw Abu-Jamal fire a few shots into Officer Faulkner. At the scene, Chobert identified Abu-Jamal as the person who shot Officer Faulkner. Michael Scanlon testified he witnessed an assailant, whom he could not identify, shoot Officer Faulkner from behind, then watched the officer fall, and saw the assailant stand over the officer and shoot him in the face. Albert Magliton testified he saw Abu-Jamal run across the street from the parking lot, then he heard shots and saw Officer Faulkner on the ground and Abu-Jamal on the curb. Magliton identified Abu-Jamal as the shooter, both at the scene and at trial.

On December 15, 1981, Anthony Jackson was appointed counsel for Abu-Jamal. Abu-Jamal was arraigned on charges of first degree murder and other related charges. The court granted Abu-Jamal's request to proceed pro se and the court designated Jackson, who had spent five months preparing for trial, as backup counsel.

A jury trial commenced on June 7, 1982. Abu-Jamal was disruptive, uncooperative, and hostile. He repeatedly insisted that John Africa, a social activist who was not a lawyer, be appointed as counsel, even after the court denied this request. Abu-Jamal's conduct necessitated his removal from proceeding pro se for the remainder of the trial, and at times caused him to be physically removed from the courtroom. The jury was instructed against drawing negative inferences from his removal. Jackson, who was present throughout the entire trial and was reinstated as primary counsel when Abu-Jamal was removed, kept Abu-Jamal fully informed throughout the proceedings.

During the lengthy trial, Jackson cross-examined each witness called by the prosecutor. Abu-Jamal presented seventeen witnesses: eight fact witnesses and nine character witnesses. Neither Abu-Jamal nor Cook testified at trial.

(Edited only for language). More on the case from the Faulkner family website here; press summary here.

Pray, if you will, for the repentance of Mr. Abu-Jamal, and his opportunity to seek God's forgiveness for what he has done and what he took from Officer Faulkner and his family. But no earthly justice can be done by allowing him to evade indefinitely the lawful and proper consequences of his crime.

Anyway, the short summary is that the Court ruled 7-2 to uphold a state open election system that allowed candidates from all parties to run in an initial election with their chosen party listed, without having been nominated by the party, followed by a runoff for the top two candidates; the major parties challenged the constitutionality of this procedure under a 2000 decision invalidating California's "blanket primary" under the First Amendment's right to freedom of association. The crux of the Washington case was whether the parties have a right to prevent candidates who have not been nominated by the party from using the party label on a ballot open to the general public.

The flaw in this argument is that, unlike the California primary, the I-872 primary does not, by its terms, choose parties’ nominees. The essence of nomination - the choice of a party representative - does not occur under I-872. The law never refers to the candidates as nominees of any party, nor does it treat them as such. ...

[R]espondents' assertion that voters will misinterpret the party-preference designation is sheer speculation. It "depends upon the belief that voters can be 'misled' by party labels. But '[o]ur cases reflect a greater faith in the ability of individual voters to inform themselves about campaign issues.'"... There is simply no basis to presume that a well-informed electorate will interpret a candidate's party-preference designation to mean that the candidate is the party's chosen nominee or representative or that the party associates with or approves of the candidate.... This strikes us as especially true here, given that it was the voters of Washington themselves, rather than their elected representatives, who enacted I-872.

Voter perceptions matter, and if voters do not actually believe the parties and the candidates are tied together, it is hard to see how the parties' associational rights are adversely implicated. ...After all, individuals frequently claim to favor this or that political party; these preferences, without more, do not create an unconstitutional forced association.

...[T]here is no general right to stop an individual from saying, "I prefer this party," even if the party would rather he not. Normally, the party protects its message in such a case through responsive speech of its own.

The views of the self-identified party supporter color perception of the party's message, and that self-identification on the ballot, with no space for party repudiation or party identification of its own candidate, impairs the party's advocacy of its standard bearer. ...

...[T]hrusting an unwelcome, self-proclaimed association upon the party on the election ballot itself is amply destructive of the party's associational rights. An individual's endorsement of a party shapes the voter's view of what the party stands for, no less than the party's endorsement of an individual shapes the voter's view of what the individual stands for. That is why party nominees are often asked (and regularly agree) to repudiate the support of persons regarded as racial extremists.

Not only is the party's message distorted, but its goodwill is hijacked. There can be no dispute that candidate acquisition of party labels on Washington's ballot - even if billed as self-identification - is a means of garnering the support of those who trust and agree with the party. The "I prefer the D's" and "I prefer the R's" will not be on the ballot for esthetic reasons; they are designed to link candidates to unwilling parties (or at least parties who are unable to express their revulsion) and to encourage voters to cast their ballots based in part on the trust they place in the party's name and the party's philosophy.

...Is it enough to say on the ballot that a notorious and despised racist who says that the party is his choice does not speak with the party's approval? Surely not. His unrebutted association of that party with his views distorts the image of the party nonetheless.

...It is no mystery what is going on here. There is no state interest behind this law except the Washington Legislature's dislike for bright-colors partisanship, and its desire to blunt the ability of political parties with noncentrist views to endorse and advocate their own candidates. That was the purpose of the Washington system that this enactment was adopted to replace - a system indistinguishable from the one we invalidated in Jones, which required parties to allow nonmembers to join in the selection of the candidates shown as their nominees on the election ballot.... And it is the obvious purpose of Washington legislation enacted after this law, which requires political parties to repeat a candidate's self-declared party "preference" in electioneering communications concerning the candidate - even if the purpose of the communication is to criticize the candidate and to disavow any connection between him and the party.

It's a close case; Justice Scalia, as usual, has the firmest grasp of political theory and practice on the Court, although that doesn't necessarily mean that what is politically bad is also constitutionally bad; I think I would be inclined to side with the majority's view that as long as the ballot itself is not actively deceptive, the party's ability to engage in pre-election speech should be able to cure the possibility of a David Duke, a Lyndon LaRouche or an Al Sharpton hijacking its reputation and good name.

The U.S. Supreme Court today, in a unanimous opinion by Justice Scalia in NY State Bd of Elections v. Lopez Torres, reversed a Second Circuit decision that had overturned New York's system for selecting party nominees for trial judges. The appeals court had held that the First Amendment right to political association of prospective candidates for New York Supreme Court judgeships* were violated by the system of choosing nominees through party conventions dominated by party bosses, rather than through a more directly democratic system such as a primary.

Justice Scalia's opinion starts out with a concise summary of familiar and settled (if theoretically debatable) ground: the Constitution gives a political party some First Amendment associational rights to control its own processes for choosing its nominees, but imposes some restrictions (including Fourteenth and Fifteenth Amendment restrictions against discrimination) on a party's candidate-selection process when the state grants the party the right to a line on the ballot. But as he explains, the problem with the conventions is not any legal restriction on who can throw their hat in the ring but rather a practical, political limit to who can win those contests - a problem for which the solution is necessarily political, not legal:

To be sure, we have...permitted States to set their faces against "party bosses" by requiring party-candidate selection through processes more favorable to insurgents, such as primaries. But to say that the State can require this is a far cry from saying that the Constitution demands it.None of our cases establishes an individual’s constitutional right to have a "fair shot" at winning the party's nomination. And with good reason. What constitutes a "fair shot" is a reasonable enough question for legislative judgment, which we will accept so long as it does not too much infringe upon the party's associational rights. But it is hardly a manageable constitutional question for judges - especially for judges in our legal system, where traditional electoral practice gives no hint of even the existence, much less the content, of a constitutional requirement for a "fair shot" at party nomination. Party conventions, with their attendant "smoke-filled rooms" and domination by party leaders, have long been an accepted manner of selecting party candidates. "National party conventions prior to 1972 were generally under the control of state party leaders" who determined the votes of state delegates. . . . Selection by convention has never been thought unconstitutional, even when the delegates were not selected by primary but by party caucuses.

(Emphasis added, citations omitted). The Court similarly rejected the idea that one-party rule in many parts of New York State created a constitutional problem with the party's candidate-selection process that was resolvable by the judiciary:

The reason one-party rule is entrenched may be (and usually is) that voters approve of the positions and candidates that the party regularly puts forward. It is no function of the First Amendment to require revision of those positions or candidates. The States can, within limits (that is, short of violating the parties' freedom of association), discourage party monopoly - for example, by refusing to show party endorsement on the election ballot. But the Constitution provides no authority for federal courts to prescribe such a course. The First Amendment creates an open marketplace where ideas, most especially political ideas, may compete without government interference. . . . It does not call on the federal courts to manage the market by preventing too many buyers from settling upon a single product.

Limiting respondents' court-mandated "fair shot at party endorsement" to situations of one-party entrenchment merely multiplies the impracticable lines courts would be called upon to draw. It would add to those alluded to earlier the line at which mere party popularity turns into "one-party dominance." In the case of New York's election system for Supreme Court Justices, that line would have to be drawn separately for each of the 12 judicial districts - and in those districts that are "competitive" the current system would presumably remain valid. But why limit the remedy to one-party dominance? Does not the dominance of two parties similarly stifle competing opinions? Once again, we decline to enter the morass.

When one considers that elections require candidates to conduct campaigns and to raise funds in a system designed to allow for competition among interest groups and political parties, the persisting question is whether that process is consistent with the perception and the reality of judicial independence and judicial excellence. The rule of law, which is a foundation of freedom, presupposes a functioning judiciary respected for its independence, its professional attainments, and the absolute probity of its judges. And it may seem difficult to reconcile these aspirations with elections.

Still, though the Framers did not provide for elections of federal judges, most States have made the opposite choice, at least to some extent. In light of this longstanding practice and tradition in the States, the appropriate practical response is not to reject judicial elections outright but to find ways to use elections to select judges with the highest qualifications. A judicial election system presents the opportunity, indeed the civic obligation, for voters and the community as a whole to become engaged in the legal process. Judicial elections, if fair and open, could be an essential forum for society to discuss and define the attributes of judicial excellence and to find ways to discern those qualities in the candidates. The organized bar, the legal academy, public advocacy groups, a principled press, and all the other components of functioning democracy must engage in this process.

Even in flawed election systems there emerge brave and honorable judges who exemplify the law's ideals. But it is unfair to them and to the concept of judicial independence if the State is indifferent to a selection process open to manipulation, criticism, and serious abuse.

Rule of law is secured only by the principled exercise of political will. If New York statutes for nominating and electing judges do not produce both the perception and the reality of a system committed to the highest ideals of the law, they ought to be changed and to be changed now. But, as the Court today holds, and for further reasons given in this separate opinion, the present suit does not permit us to invoke the Constitution in order to intervene.

* - In New York, the main trial court of general jurisdiction for civil and criminal cases is called the New York Supreme Court; the state's highest court is the New York Court of Appeals.

*Slate has a really silly article about the demise of the billable hour, while admitting that the big law firms that handle high-end cases (i.e., lawyers like me) are not likely to abandon hourly billing any time soon. Yes, it's true that basically every lawyer in private practice hates the billable hour; that's been true as long as anyone could remember. And it's true that clients don't love it either, and that if change comes to billing methods, it will come from client demand. But like Churchill's dictum about democracy being the worst form of government except every alternative that has been tried, hourly billing endures because lawyers and clients alike are familiar with it, and for potentially major litigation, it's hard to come up with alternatives that don't have larger problems. The flaw in the Slate piece is not suggesting any feasible alternative - that works at least minimally for both lawyer and client - for how to bill a case that walks in the door with potentially huge damages liability, yet even the most experienced litigator can't tell you up front whether it will be quickly dismissed or settled, or end up in years of labor-intensive discovery and trial, or somewhere in between. Without a workable alternative, large organizations will always prefer the tried and tested, and work within that framework to make the process work for both parties.

Some of you may remember my post about the cert petition in Kennedy v. Louisiana, and the question of whether the "evolving national consensus" theory of the Eighth Amendment only goes in one direction - that is, if it's true that the action of some states to ban a punishment in a particular context (here, the death penalty for child rape) transmutes that punishment into a "cruel and unusual" one for constitutional purposes where it was not before, is it also true that more states adding that punishment can make it not cruel and unusual?

Well, today the Court granted cert in Kennedy, so the Court will be faced with that question, among others.

Prof. Kmiec gets right some of the obvious problems with this parallel: Clinton, unlike Taft, has no prior judicial experience and loves politics much more than the law; Clinton, unlike Taft, would presumably not be taking the Chief Justice job; and Taft, unlike Clinton, never had his law license suspended for perjury in a judicial proceeding.

What Prof. Kmiec misses is the showstopper* - even beyond losing him as a campaigner - that would prevent Hillary Clinton, especially, from considering this: confirmation hearings. Nobody in her right mind who was at all sympathetic to Bill Clinton would ever want to see the man testify under oath again. And given the tendency of modern confirmation hearings to delve into any and all scandals in the nominee's past, hearings with Bill Clinton as the nominee would be both exhaustively lengthy and acrimonious and potentially uniquely damaging to Hillary personally. Assuming the Democrats hold control of the Senate they could potentially try to quash much questioning at the hearings, but even Republicans who hold principled objections to filibustering judges would be on firm ground blocking a floor vote until the Judiciary Committee was willing to hold a full hearing on the nominee.

I suppose in theory, I could imagine Hillary pulling such a stunt as a deliberate provocation and/or for the express purpose of breaking the tradition of such hearings. But I think it far more likely that she would avoid at any cost the spectacle of William Jefferson Clinton being sworn in to testify anywhere ever again.

* - I confess that I don't know whether there would also be legal problems with appointing a spouse to a federal judgeship, but since Prof. Kmiec refers to anti-nepotism laws precluding a Bill Clinton role in Hillary's Cabinet, I assume or at least hope he considered this angle.

CINCINNATI - A lawyer for a former autoworker accused of being a Nazi death camp guard on Thursday challenged the right of the nation's chief immigration judge to order his deportation.

The 6th U.S. Circuit Court of Appeals heard arguments on the accused guard John Demjanjuk's challenge to a final removal, or deportation, order issued in 2005. The federal government has been trying to deport him for three decades.

The three-judge panel didn't say when it would rule, but it's usually several months after arguments before the court issues a decision.

The arguments revolved around whether an immigration judge had the authority to order the removal of Demjanjuk, 87.

Of course, this is why both advocates and opponents of aggressive use of the deportation system are fooling themselves and/or their listeners; whatever the merits of other options for controlling the border (employer enforcement, fencing, etc.), we simply don't and aren't likely to ever have procedures in place to handle large numbers of deportation proceedings with great dispatch.

When the New York Times disclosed a top-secret program of surveilance of international phone calls with suspected terrorists, the Bush Administration faced a critical choice: defend the program in public - including correcting misimpressions left by press reports - or try to preserve such secrecy as had not been shattered by the Times. Both choices had substantial downsides, but today the Ninth Circuit held (in a decision that is otherwise somewhat of a split decision* in a challenge brought to the program by "Al-Haramain Islamic Foundation, a designated terrorist organization, and two of its attorneys") that the Bush Administration waived its legal defense that a full judicial review of the program would involve disclosure of state secrets because the Administration responded to the Times in a way that confirmed the program's existence and some facts about it:

Following the terrorist attacks on September 11, 2001, President George W. Bush authorized the National Security Agency ("NSA") to conduct a warrantless communications surveillance program. The program intercepted international communications into and out of the United States of persons alleged to have ties to Al Qaeda and other terrorist networks.

Though its operating parameters remain murky, and certain details may forever remain so, much of what is known about the Terrorist Surveillance Program ("TSP") was spoon-fed to the public by the President and his administration.

After The New York Times first revealed the program's existence in late 2005, government officials moved at lightning-speed to quell public concern and doled out a series of detailed disclosures about the program. Only one day after The New York Times' story broke, President Bush informed the country in a public radio address that he had authorized the interception of international communications of individuals with known links to Al Qaeda and related terrorist organizations.

Two days after President Bush's announcement, then-Attorney General Alberto Gonzales disclosed that the program targeted communications where the government had concluded that one party to the communication was a member of, or affiliated with, Al Qaeda. The Department of Justice followed these and other official disclosures with a lengthy white paper in which it both confirmed the existence of the surveillance program and also offered legal justification of the intercepts.

+++

In light of extensive government disclosures about the TSP, the government is hard-pressed to sustain its claim that the very subject matter of the litigation is a state secret. Unlike a truly secret or "black box" program that remains in the shadows of public knowledge, the government has moved affirmatively to engage in public discourse about the TSP. Since President Bush's initial confirmation of the program's existence, there has been a cascade of acknowledgments and information coming from the government, as officials have openly, albeit selectively, described the contours of this program.

Thus, we agree with the district court that the state secrets privilege does not bar the very subject matter of this action.

I should note, first of all, that the Sixth Circuit has reached a contrary conclusion, so expect the Supreme Court to weigh in on this sooner rather than later. The net result of this line of reasoning is that the media can combine with the courts to create a no-win situation: the media discloses a secret program and portrays it in an unfavorable light that suggests it's illegal; the White House can't stay silent without taking a public beating; and then the courts say that lawsuits can not only be filed because the White House fought back, but they also allow the development of a one-sided and incomplete factual record based on media misreporting.

None of which helps fight the bad guys.

* - Specifically, after finding that the lawsuit was not barred in its entirety, the court did find that a sealed document that was critical to the plaintiff's proof of standing was covered by the state secrets privilege, but remanded for the lower court to determine whether FISA preempts the state secrets privilege. While this may yet play out successfully for the government, what the court should have done is find that the state secrets privilege applies to cover the subject matter of the action where a full and fair litigation of the controversy would require disclosure of state secrets, rather than approach the issue piecemeal.

Tort law does not provide protection from the obvious or "widely known" risks of consuming a particular food. The risk that some people will get gas after consuming certain foods, such as milk, is widely known. A bout of gas or indigestion does not justify a race to the courthouse. Indeed, were the rule otherwise, a variety of food manufacturers as well as stadiums, bars, restaurants, convenience stores, and hot dog stands throughout the country would be liable to millions of would-be plaintiffs every day.

SCOTUSBlog notes that the State of Louisiana - in opposing a certiorari petition - is pointing to a trend of adding child rape to the list of capital crimes as a basis for finding that it's not cruel and unusual punishment under the Eighth Amendment to execute a man who raped his 8-year-old stepdaughter:

The state said that the Court, if it agrees to hear the case, should focus not only on how many states treat rape of a child as a capital crime, but also on a trend toward applying the death sentence to more crimes where the victim is not killed. Five states, like Louisiana, now have capital punishment for child rape, all enacted since 1997 with the most recent, in Texas, in 2007.

Moving beyond that specific crime, the state’s brief said, 15 out of the 38 states and the federal government – 41 percent of the jurisdictions, it notes — "authorize some form of non-homicide capital punishment." That includes treason, espionage, aircraft piracy, aggravated kidnapping, and some drug trafficking crimes.

"The trend toward capitalization of non-homicide crimes, child rape in particular, is significant," the state asserted. "Six states have now enacted the death penalty for child rape after this Court [in Coker v. Georgia, 1977] held that the death penalty for rape of an adult woman was unconstitutional."

This argument puts the Court's liberals and swing vote Justice Kennedy to the test to see if they actually mean what they say.

If you recall, the Court in cases such as Atkins v Virginia, involving the execution of the mentally retarded, and Roper v. Simmons, involving the execution of defendants who were under 18 at the time of the crime, has pointed to some variant of an "evolving national consensus" drawn from a trend in state statutes dealing with the death penalty as a basis for finding that the meaning of the Eighth Amendment has been changed sufficiently to extend the constitutional rule to force the dissenting states into line. In Roper, that "evolving consensus" consisted of four state legislatures and one state court changing positions between 1989 and 2005. As I have argued previously, because Article V of the Constitution provides a specific mechanism for the meaning of the document to be altered by action of three-fourths of the states voting in a specified way on a specific written amendment proposed either by two-thirds of the states or two-thirds of both Houses of Congress, this line of reasoning is hopelessly irreconcilable with the text of the Constitution.

But for now, we are stuck with the doctrine; the issue is its application. Is it possible for the "national consensus" to "evolve" in a direction that Justices who oppose the death penalty* don't like or agree with? Or is this, like so many liberal Constitutional doctrines, a one-way ticket?

The Third Amendment! I've actually long argued that the Third Amendment was, at least, the most successful of the Bill of Rights, in terms of actually getting respected by the government. The funny thing is that the Onion actually gets the history right here.

(1) without any basis in fact, accused defendants and their witnesses of engaging in a conspiracy, collusion, and perjury to cover up malpractice, (2) asserted without any basis in fact that defense witnesses had destroyed, altered, or suppressed evidence, and (3) insinuated without any basis in fact that one of the defendants had abandoned the plaintiff's medical care to engage in a sexual tryst with a nurse. The panel described Mr. Fieger's misconduct as "truly egregious" and "pervasive" and concluded that it "completely tainted the proceedings."

The Michigan Supreme Court described how Fieger responded to the decision by this panel - and for all the practicing attorneys in the audience, I would not advise you to try this yourself:

Three days later, on August 23, 1999, Mr. Fieger, in a tone similar to that which he had exhibited during the Badalamenti trial and on his then-daily radio program in Southeast Michigan, continued by addressing the three appellate judges in that case in the following manner, "Hey Michael Talbot, and Bandstra, and Markey, I declare war on you. You declare it on me, I declare it on you. Kiss my a**, too." Mr. Fieger, referring to his client, then said, "He lost both his hands and both his legs, but according to the Court of Appeals, he lost a finger. Well, the finger he should keep is the one where he should shove it up their a**es."

Two days later, on the same radio show, Mr. Fieger called these same judges "three jackass Court of Appeals judges." When another person involved in the broadcast used the word "innuendo," Mr. Fieger stated, "I know the only thing that's in their endo should be a large, you know, plunger about the size of, you know, my fist." Finally, Mr. Fieger said, "They say under their name, 'Court of Appeals Judge,' so anybody that votes for them, they've changed their name from, you know, Adolf Hitler and Goebbels, and I think - what was Hitler's - Eva Braun, I think it was, is now Judge Markey, she's on the Court of Appeals."

The Federal District Court, however, overruled the State Supreme Court on the federal constitutional question of whether the Michigan rules are vague, overbroad, and "are so imprecise that persons of ordinary intelligence must guess at their meaning." It's the latter ruling that prompted the District Court to conclude:

One person's courtesy may be another person's abomination. For example, a man extending his hand in greeting may be a courtesy to many. To others, it may be a violation of a fundamental belief. Thus, the chance of selective enforcement based on the judiciary's sensibilities is too great for these rules to withstand constitutional scrutiny.

Yes, and one man's threat to put his fist up....well, there is probably merit to the conclusion that rules of this nature are overbroad and give the judiciary power to sanction legitimate speech. But I fail to see how there is any possible basis for saying that Fieger was unable to understand that he was crossing and leaving far behind in the dust any pretense at the minimal level of decency and civility that an attorney is supposed to show to the courts he practices before. Unless lawyers really are unable to understand what "courtesy and respect" means.

WSJ Law Blog carries a series of excerpts from a lengthy NY Times Magazine profile ($) of Justice John Paul Stevens, the senior Justice on the Supreme Court and by any commonly used standard the leader of the Court's liberal wing. Some of the key excerpts:

"I don't think of myself as a liberal at all," he told me during a recent interview in his chambers, laughing and shaking his head. "I think as part of my general politics, I'm pretty darn conservative." Stevens said that his views haven't changed since 1975, when as a moderate Republican he was appointed by President Gerald Ford to the Supreme Court. Stevens's judicial hero is Potter Stewart, the Republican centrist, whom Stevens has said he admires more than all of the other justices with whom he has served. He considers himself a "judicial conservative," he said, and only appears liberal today because he has been surrounded by increasingly conservative colleagues.

[H]e emphasized that he still thinks of himself as a judicial conservative, which he defined as someone who tries to follow precedents and "who submerges his or her own views of sound policy to respect those decisions by the people who have authority to make them."

+++

"Originalism is perfectly sensible. I always try to figure out what the original intent was, but to say that's the Bible and nothing else counts seems to me quite wrong."

Up to a point, Justice Stevens is framing his view of the Court's job in terms similar to those commonly used by Justice Scalia or by Chief Justice Roberts to describe their judicial philosophies, and he's self-identifying as a "judicial conservative." Now, you can take this, if you like, as so much disingenuousness in light of his record, but I think it's also a powerful tribute to how far conservatives in general and Justice Scalia in particular have shifted the landscape in how people within and outside of the Court perceive its role and mission that even Justice Stevens finds it desirable that he be perceived as engaging in the same sort of project, and disagreeing mainly at the margins of what constitutes "judicial conservatism." Just as was true when Bill Clinton declared that "the era of big government is over," the moment your opponents start cloaking themselves in your philosophical garb, you know you are winning the battle of ideas. It also means that nostalgia for the old order (H/T) is simply the lament of the losing side in that battle.

Relatedly, Tom Goldstein, who is certainly no conservative himself but is a careful observer of the Supreme Court, has a thought-provoking post on the political implications of the upcoming Term. Among other things, he predicts a victory for Guantanamo detainees in their pursuit of access to federal courts, and notes that whichever way the DC gun ban case comes out, it's likely to mobilize the Right more than the Left. His analysis is worth considering:

Because the public's interest in the Court is notoriously weak and its memory short, the relevant question in deciding whether the Court can be a mobilizing force in the 2008 election for ideological groups is therefore not "how were cases decided in OT2006" (the focus of commentary so far), but instead "how will OT2007's cases be decided?" And I think that the existing and anticipated docket strongly suggests that, during OT2007, the outcomes of the highest-profile cases will be perceived as quite liberal.

As a consequence, I think it is exceptionally unlikely that next Term will end as this one did, with front-page stories and reports leading the evening news describing the Court as profoundly conservative, with laudatory commentary by the right and howls of protest from the left. Instead, we will see (mistaken) talk of the "surprising" tack by the Court back to the left and (among the legal glitterati) the "good Kennedy, bad Kennedy" phenomenon in which his ideological views seemingly oscillate dramatically from Term to Term. In fact, this commentary will be wrong: the Justices and their views will be exactly the same come June 2008; it is the cases that will be different.

Equally or more important when considering the potential electoral consequences of the Term, the leading cases will be ones in which the more liberal position is distinctly - even profoundly - unpopular with conservatives, creating the prospect that the Court will serve as a rallying cry to mobilize the electorate. Even if the left ultimately does not win all of the five most significant cases of this Supreme Court Term, that wing of the Court will carry the banner for accused terrorists, crack dealers, child pornographers, child rapists, and those who want to forbid gun possession.

+++

In particular, conservatives in 2008 could use the five cases cited above to articulate a very coherent theme of "law and order" and "victims rights" around the need to move the Court one further step to the right. Each of the cases - terrorism, drug sentencing, child pornography, the death penalty, and gun rights - fits within that framework.

The Ninth Circuit today affirmed the dismissal of a complaint by the family of Rachel Corrie, who was crushed to death by a bulldozer operated by the Israel Defense Forces while protesting the destruction of Palestinian homes, against Caterpillar, the manufacturer of the bulldozers. The plaintiffs also included the families of various Palestinians. The court did not wade into the facts far enough to grasp the extent to which Ms. Corrie was actively abetting the smuggling of weapons used in terrorism against Israel, nor to discuss who was really at fault in the specific incident that led to Ms. Corrie's death. Instead, it dismissed under the political question doctrine, finding that, because the bulldozers were financed and permitted to be sold by U.S. aid to Israel, it was not the place of the courts to allow a civil lawsuit to decide such explosive foreign policy questions and possibly resolve them differently than would the Executive and Legislative Branches:

The decisive factor here is that Caterpillar's sales to Israel were paid for by the United States. . . .

+++

Allowing this action to proceed would necessarily require the judicial branch of our government to question the political branches' decision to grant extensive military aid to Israel. It is difficult to see how we could impose liability on Caterpillar without at least implicitly deciding the propriety of the United States' decision to pay for the bulldozers which allegedly killed the plaintiffs' family members.

+++

We cannot intrude into our government's decision to grant military assistance to Israel, even indirectly by deciding this challenge to a defense contractor's sales.

+++

In this regard, we are mindful of the potential for causing international embarrassment were a federal court to undermine foreign policy decisions in the sensitive context of the Israeli-Palestinian conflict. Plaintiffs argue that the United States government has already criticized Israel's home demolitions in the Palestinian Territories. They point, for example, to former Secretary of State Powell's statement that "[w]e oppose the destruction of [Palestinian] homes - we don't think that is productive." But that language is different in kind from a declaration that the IDF has systematically committed grave violations of international law, none of which the United States has ever accused Israel of, so far as the record reveals. Diplomats choose their words carefully, and we cannot subvert United States foreign policy by latching onto such mildly critical language by the Secretary of State. Cf. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 386 (2000) ("[T]he nuances of the foreign policy of the United States . . . are much more the province of the Executive Branch and Congress than of this Court.") (internal quotations omitted).

It is not the role of the courts to indirectly indict Israel for violating international law with military equipment the United States government provided and continues to provide. . . . Plaintiffs may purport to look no further than Caterpillar itself, but resolving their suit will necessarily require us to look beyond the lone defendant in this case and toward the foreign policy interests and judgments of the United States government itself.

Three cheers for the Ninth Circuit panel (consisting, by the way, of two Clinton appointees and a Carter appointee) for getting this one right.

*Michael Lewis is a wonderful writer and a guy who understands and loves markets. You have to read (here and here) his take on the subprime lending crisis. (Not everyone is amused). Lewis himself was a bond trader for a few years in the 1980s, leading to his smash hit book "Liar's Poker," and he poses here as a Gordon Gekko-type hedge-fund manager who blames poor people for evertything. The great thing about these pieces is that they are double-edged satire, containing enough cold-hearted economic truth to effectively skewer subprime borrowers and Capitol Hill demagogues, but at the same time mocking the misanthropic (at best) attitudes he parrots.

*The Constitution stops at the frat house door, as the Second Circuit upholds a college's right to use anti-discrimination policies to deny recognition to a fraternity on grounds of not admitting women. There's a case to be made for greater autonomy of educational institutions and a case to be made for the fundamental ambiguity of right-to-association law, but the reasoning used in this opinion is almost as flimsy as the public policy at issue is blinkered.

[Richard] Haynes, the witty and gentlemanly criminal defense lawyer, recalls the prior generation’s legal master Percy Foreman warning him that the law is a jealous mistress "but they don't explain that the law is a nymphomaniac."

Former Judge Michael Mukasey has a great summary of why the Jose Padilla case, even after Padilla's conviction, still shows that processing terrorists and potential terrorists through the regular criminal justice system is such a bad idea. Key graf:

First, consider the overall record. Despite the growing threat from al Qaeda and its affiliates--beginning with the 1993 World Trade Center bombing and continuing through later plots including inter alia the conspiracy to blow up airliners over the Pacific in 1994, the attack on the American barracks at Khobar Towers in 1996, the bombing of U.S. embassies in Kenya and Tanzania in 1998, the bombing of the Cole in Aden in 2000, and the attack on Sept. 11, 2001--criminal prosecutions have yielded about three dozen convictions, and even those have strained the financial and security resources of the federal courts near to the limit.

Second, consider that such prosecutions risk disclosure to our enemies of methods and sources of intelligence that can then be neutralized. Disclosure not only puts our secrets at risk, but also discourages allies abroad from sharing information with us lest it wind up in hostile hands.

And third, consider the distortions that arise from applying to national security cases generally the rules that apply to ordinary criminal cases.

On one end of the spectrum, the rules that apply to routine criminals who pursue finite goals are skewed, and properly so, to assure that only the highest level of proof will result in a conviction. But those rules do not protect a society that must gather information about, and at least incapacitate, people who have cosmic goals that they are intent on achieving by cataclysmic means.

Khalid Sheikh Mohammed, the mastermind of the 9/11 attacks, is said to have told his American captors that he wanted a lawyer and would see them in court. If the Supreme Court rules--in a case it has agreed to hear relating to Guantanamo detainees--that foreigners in U.S. custody enjoy the protection of our Constitution regardless of the place or circumstances of their apprehension, this bold joke could become a reality.

The director of an organization purporting to protect constitutional rights has announced that his goal is to unleash a flood of lawyers on Guantanamo so as to paralyze interrogation of detainees. Perhaps it bears mention that one unintended outcome of a Supreme Court ruling exercising jurisdiction over Guantanamo detainees may be that, in the future, capture of terrorism suspects will be forgone in favor of killing them. Or they may be put in the custody of other countries like Egypt or Pakistan that are famously not squeamish in their approach to interrogation--a practice, known as rendition, followed during the Clinton administration.

At the other end of the spectrum, if conventional legal rules are adapted to deal with a terrorist threat, whether by relaxed standards for conviction, searches, the admissibility of evidence or otherwise, those adaptations will infect and change the standards in ordinary cases with ordinary defendants in ordinary courts of law.

As I have said repeatedly, it's a terrible mistake of the critics on the left to assume that everyone must either be treated as an ordinary criminal defendant or a lawful combatant. The system needs to formally recognize a third category and tailor the rules to the special needs of dealing with them.

My kids hate Michael Vick. Not, mind you, because of anything he did on or off the field, but simply because on vacation, every time they turned on ESPN to get baseball news, they instead got The Passion of the Vick, repeated endlessly. (Two summers ago it was the same with Terrell Owens).

Vick's deal is no cakewalk - a likely 12-18-month sentence plus possible state charges carrying stiffer fines. In fact, I don't know if I would have let him plead to the federal charges given the state exposure. Although I can't say I see what point there is to the state getting involved once he has plead to a federal felony; is Virginia really that short on crimes to prosecute?

Apparently, Vick is cooperating with an ongoing investigation of other dogfighting rings, so analysts like Roger Cossack were wrong in assuming that he had nothing more to offer once his co-defendants pleaded out. But even if he was the last man standing, Vick had two key chips to play. First, if the investigation really had ended with him, there's the benefit to the prosecutors of being able to close a case and close it successfully - move on to other things, wrap up without a defeat or a messy, labor-intensive trial.

And second, Vick's plea legitimizes his prosecution - not a minor thing when a man has lined up the NAACP and similar groups to charge racism and witch-hunting in the bringing of the investigation. Having the man stand up and accept responsibility goes a long way in that regard.

Here, the District Court found that Shatner's assertion [as Captain Kirk in a DIRECTV commercial] that "settling for cable would be illogical," considered in light of the advertisement as a whole, unambiguously made the false claim that cable's HD picture quality is inferior to that of DIRECTV's. We cannot say that this finding was clearly erroneous, especially given that in the immediately preceding line, Shatner praises the "amazing picture clarity of DIRECTV HD." We accordingly affirm the District Court’s conclusion that TWC established a likelihood of success on its claim that the Revised Shatner Commercial is literally false.

I guess Mr. Spock was correct to question this statement. A Jessica Simpson-as-Daisy Duke commercial got the same treatment.

In the process, the court discusses but rejects an idea that has long intrigued me - that unenumerated rights protected by the Ninth Amendment are those rights that government has never previously invaded, as opposed to things that were widely prohibited at the time the Ninth Amendment was adopted:

True, a lack of government interference throughout history might be some evidence that a right is deeply rooted. But standing alone, it cannot be enough. If it were, it would be easy to employ such a premise to support sweeping claims of fundamental rights. For example, one might argue that, because Congress did not significantly regulate marijuana until 1937, relatively late in the constitutional day, see Gonzales v. Raich, 545 U.S. 1, 11 (2005), there must be a radition of protecting marijuana use. Because Congress did not regulate narcotics until 1866 when it heavily taxed opium, a drug created long before our Nation’s founding, see United States v. Moore, 486 F.2d 1139, 1215-16, 1218 n.50 (D.C. Cir. 1973) (Wright, J., dissenting), it must be that individuals have a right to acquire and use narcotics free from regulation. Or because speed limits are a recent innovation, we have a fundamental right to drive as fast as we deem fit. But this is most certainly not the law. A prior lack of regulation suggests that we must exercise care in evaluating the untested assertion of a constitutional right to be free from new regulation. But the lack of prior governmental regulation of an activity tells us little about whether the activity merits constitutional protection: "The fact that powers long have been unexercised well may call for close scrutiny as to whether they exist; but if granted, they are not lost by being allowed to lie dormant, any more than nonexistent powers can be prescripted by an unchallenged exercise." See United States v. Morton Salt Co., 338 U.S. 632, 647 (1950). Indeed, creating constitutional rights to be free from regulation based solely upon a prior lack of regulation would undermine much of the modern administrative state, which, like drug regulation, has increased in scope as changing conditions have warranted.

Slip op. at 22-23. I'd agree with the court that the mere absence of prior regulation is not by itself enough to create an unenumerated right, but I do think this particular point merited more thoughtful consideration than the Court gave it - the fact that an argument makes "much of the modern administrative state" unconstitutional may be reason to invoke stare decisis and avoid overturning such widespread and settled practices, but it is not a basis for saying that the argument is wrong. Experimental drugs didn't really exist in 1789 in the way we think of them today - but plenty of other things unregulated by the government at the time did, and a serious effort to make sense of the Ninth Amendment requires a better explanation of why it was not meant to restrict new and novel forms of government intrusion.

*Pedro Feliciano's meltdown on Saturday can probably just be chalked up to nobody being perfect (Wagner, whose ERA is down to 1.39, is almost certainly overdue for one of those games), but with Joe Smith down in the minors, it's also a reminder that guys like Feliciano can go south on you in a hurry if overworked. The Mets don't have the juice for a Mark Teixeira deal at this point, so the deal they need to make is for another arm in the pen.

*Via Bob Sikes: Bill Robinson has died. Robinson always seemed like a classy guy, and as a ballplayer he was (along with Mike Easler) one of the guys rescured off the scrap heap in mid-career to help build the Pirates into a championship team in the late 70s and early 80s: Robinson was a 31-year-old .235/.386/.281 hitter and busted ex-prospect when he came to Pittsburgh, but batted .276/.477/.313 (114 OPS +) over 8 seasons at Three Rivers. RIP.

I'll be honest: I hated when Steve Phillips and the Mets signed Tom Glavine five years ago. I thought it was a stupid, misguided attempt to steal away a rival's player and a complete waste of money. But, while Glavine's never been a personal favorite -- I'm Irish, grudges don't fade as easily for us -- he's far outperformed any reasonable expectations of him while behaving in the most professional, likeable manner possible. He may not be dominant any more, and he seems particularly prone to giving large leads away lately, but I'll always remember the tremendous performance he turned in during last year's playoffs. And I'll be thrilled to see him finally achieve his 300th win.

*There are many reasons to doubt the veracity of TNR's formerly pseudonymous mil-blogger Scott Thomas Beauchamp, but Megan McArdle, as usual, cuts to the root of why the stories set off people's BS meters even beyond the parts (e.g., the Bradley dog-hunting tales) that seemed to clash with physical reality:

It beggars belief that 100 or more people silently watched some pottymouthed privates taunting a cripple who had acquired her injuries in the line of duty. I'm moderately well-versed in the stories about battle-hardened veterans committing atrocities in World War II. I've never come across a single story about making fun of your own side's wounded.

Atrocities, and just plain barbaric behaviour, do happen, even on the good guys' side. But the fact that they happen doesn't mean that anything can happen. AFAIK, the taboo behaviours soldiers engage in tend to fall into fairly well-defined patterns: rape, pillage, looting, revenge exacted on innocent but handy targets, graveyard jokes, taking trophies from the enemy dead. There's a kind of primitive logic to them that may sicken you, but still ultimate[ly] makes some sort of emotional sense. Beauchamp's stories defy that logic, which makes me distrust them.

*This study doesn't sound too promising by itself, but it is true that fantasy baseball is a great microcosm of how humans learn and adapt - getting your butt whipped in a fantasy league, and the desire to avoid doing so again, is a great motivator for not just gathering information but also learning how to sift between the useful and the fool's gold (similarly, I have crammed years of lessons about, say, the value of on base percentage into the past year by playing Strat-O-Matic with my son).

*Hanson is back. I actually thought those guys had talent, if not much depth to them (unsurprising, at their age back then). I'll be interested to see if they've done anything useful with it now that they have grown up.

Stephen Dunne, 30, of Boston, is seeking $9.75 million in the suit against the Massachusetts Board of Bar Examiners and the Massachusetts Supreme Judicial Court. He was denied a license to practice law in May after scoring 268.866 on the exam, just shy of the 270 passing grade.

Dunne, who is representing himself in the case, refused to answer an exam question addressing the rights of two married lesbians, their children and their property, and claims in the suit that it cost him a passing score.

In the suit, Dunne called the question "morally repugnant and patently offensive," and said he refused to answer it because he believed it legitimized same-sex marriage and same-sex parenting, which is contrary to his moral beliefs.

Now, I'll agree that there can be a problem when professors in college or law school ask politcally loaded questions and give better grades to people who agree with them. But let's walk through the absurdities here:

1. The bar is pass-fail.
2. The bar is written by committee and graded by committee, generally in haste.
3. The entire purpose of the bar is to demonstrate your ability to regurgitate the rules that make up the law as it presently is. There's nothing offensive about being asked to describe the world we live in. And if men were angels, no bar exams would be necessary.
4. $9.75 million?

President Bush Monday spared former vice presidential aide Lewis "Scooter" Libby from going to prison for 2 1/2 years for obstructing the CIA leak investigation, a White House official said.

The official said Bush "has commuted the prison sentence ... leaving intact the probation and fines handed down by the court."

"That means he is not going to jail," the official said.

Now, we get to hear what Hillary Clinton thinks about the proper uses of the pardon power and whether losing your high position in federal office is insufficient punishment for perjury.

UPDATE: What do I mean by "victimless crime"? Libby was convicted for misleading an investigation into a whodunit where the investigators already knew whodunit and didn't prosecute. Granted, Libby's false statements to the FBI (unlike his grand jury testimony) preceded Fitzgerald's appointment and Armitage's confession, but even so, the "harm" to the investigation was pretty fleeting and had no real consequence.

I don't underrate the seriousness of perjury, but in sentencing, or using the pardon power, you consider mitigating factors. Unlike the Paula Jones case, no individual litigant was harmed by obstruction of the discovery process. And unlike the Sandy Berger case, there was no successful coverup.

The father of Josh Hancock filed suit Thursday, claiming a restaurant provided drinks to the St. Louis Cardinals relief pitcher even though he was intoxicated prior to the crash that killed him.

The suit, filed in St. Louis Circuit Court by Dean Hancock of Tupelo, Miss., does not specify damages. Mike Shannon's Restaurant, owned by the longtime Cardinals broadcaster who starred on three World Series teams in the 1960s, is a defendant in the case along with Shannon's daughter, Patricia Shannon Van Matre, the restaurant manager.

Other defendants include Eddie's Towing, the company whose flatbed tow truck was struck by Hancock's sport utility vehicle in the early hours of April 29; tow truck driver Jacob Edward Hargrove; and Justin Tolar, the driver whose stalled car on Interstate 64 was being assisted by Hargrove.

The Cardinals and Major League Baseball were not listed as defendants.

Authorities said the 29-year pitcher had a blood alcohol content of nearly twice the legal limit when he crashed into the back of the tow truck. He was also speeding and using a cell phone and wasn't wearing a seat belt, police chief Joe Mokwa said after the accident. Marijuana was also found in the SUV.

***

The lawsuit claimed Tolar was negligent in allowing his vehicle to reach the point where it stalled on the highway, and for failing to move it out of the way of oncoming traffic. A police report said the car became stalled when it spun out after being cut off by another vehicle.

Police said Hargrove noticed the stalled vehicle and stopped to help. The report said he told officers he was there five to seven minutes before his truck was hit by Hancock's SUV. But Kantack said the tow truck may have been there up to 15 minutes, yet failed to get the stalled vehicle out of the way.

"Were the police contacted?" [Keith] Kantack[, a lawyer for Dean Hancock] asked. "Why weren't flares put out? Why was the tow truck there for an exorbitant amount of time?"

Let's see how many things are wrong with this picture:

1. Isn't Hancock responsible for knowing that drinking for hours and then getting in his car is a bad idea (to say nothing of speeding, talking on a cell phone and not wearing his seatbelt)? The man had pot in his car, the bar didn't put that there. He made bad choices, and there are consequences for those. It's not like this is a lawsuit filed by some innocent bystander injured by Hancock.

2. Hancock made good money, died single as a grown man, left no dependents. Why should his father be entitled to get money on his behalf?

3. He's suing the guy whose car stalled on the highway? Because his car stalled out after he got cut off? And from whom he will presumably seek a share of the lost wages for a major league ballplayer who was driving drunk while yakking on the phone? Gimme a break. The tow truck driver may have been in some ways negligent, but even then, the guy drives a tow truck, and it's not his fault that Hancock was plastered and on the phone.

The logical answer to this would seem to be that Justice Scalia is an extremely aggressive questioner, and Chief Justice Roberts has now joined him in that regard - and on a nine-judge Court, there is a diminishing return in having multiple voices from the Right asking the same questions. But as I noted last fall, Thomas' own explanation is rather different, and in fact seems to be almost the opposite conclusion:

Thomas said that as a young state attorney general arguing before the Supreme Court of Missouri, he recalled justices who "actually allowed me to make my argument. They listened to what I had to say. ... Nor did I ever feel I had not been heard or did not have my day in court."
. . . "It seems fashionable now for judges to be more aggressive in oral arguments," he said. "I find it unnecessary and distracting. ... I truly think oral arguments would be more useful if the justices would listen rather than debating the lawyers. ... I think the judges need to listen if the arguments are to be effective."

In what will almost certainly be the most practically significant case of this term, a major, major win for defendants, especially corporate defendants, today in the Supreme Court, and via a 7-2 decision written by Justice Souter from which only Justices Stevens and Ginsburg dissented.

The Court, in Bell Atlantic v. Twombly, No. 05-1126 (May 21, 2007), held that plaintiffs in an antitrust conspiracy case may not survive a motion to dismiss the complaint at the outset under Rule 12(b)(6) by a bare assertion of conspiracy. In so holding, the Court significantly clarified the Rule 8 pleading standards governing motions to dismiss non-fraud-based claims.

To put the matter in non-lawyer-ese, the Court held that plaintiffs' lawyers (in this case class action plaintiffs in an antitrust case, but the ruling will affect all civil lawsuits in federal court) need to have more of a factual basis for filing lawsuits before they can kick-start the expensive and intrusive discovery process.

The putative class plaintiffs in Bell Atlantic alleged an antitrust conspiracy in which the "Baby Bell" companies, after being permitted to enter each other's local telephone markets by the 1996 Telecommunications Act, failed to do so. The plaintiffs alleged facts showing parallel conduct - the failure to compete in one another's previously-exclusive markets - and conclusorily asserted that this parallel conduct amounted to a conspiracy. The Second Circuit, noting the Supreme Court's plaintiff-friendly enunciation of the notice pleading standards in the Swierkiewicz case (which involved pleading of the nonstatutory "McDonnell Douglas" factors that give rise to an inference of discrimination and shift the burden to the employer in an employment discrimination case), concluded that Rule 8's liberal pleading standards required no more. Subsequent Rule 8 decisions by the Supreme Court regarding the pleading of proximate/loss causation in securities and RICO cases (the Dura and Anza decisions) called that holding into question.

The Court began by reciting the familiar reasons why parallel conduct alone is not a basis for a Sherman Act conspiracy claim without proof that excludes the possibility of independent action:

The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market.

The crux of the case, however, was the holding regarding pleading standards; the Court relied heavily on the writings of Judges Easterbrook and Posner on the potential for abuse in the discovery process as a reason to weed out weak claims early:

[A] plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U. S. 265, 286 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (hereinafter Wright & Miller) ("[T]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action")

+++

[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief, "'this basic deficiency should . . . be exposed at the point of minimum expenditure of time and money by the parties and the court.'" 5 Wright & Miller § 1216, at 233-234 . . . see also Dura, supra, at 346; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc., 289 F. Supp. 2d 986, 995 (ND Ill. 2003) (Posner, J., sitting by designation) ("[S]ome threshold of plausibility must be crossed at the outset before a patent antitrust case should be permitted to go into its inevitably costly and protracted discovery phase").

+++

It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through "careful case management," post at 4, given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side. See, e.g., Easterbrook, Discovery as Abuse, 69 B. U. L. Rev. 635, 638 (1989) ("Judges can do little about impositional discovery when parties control the legal claims to be presented and conduct the discovery themselves"). And it is self-evident that the problem of discovery abuse cannot be solved by "careful scrutiny of evidence at the summary judgment stage," much less "lucid instructions to juries," post, at 4; the threat of discovery expense will push cost-conscious defendants to settle even anemic cases before reaching those proceedings. Probably, then, it is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery in cases with no "'reasonably founded hope that the [discovery] process will reveal relevant evidence'" to support a [Section] 1 claim. Dura, 544 U. S., at 347 (quoting Blue Chip Stamps, supra, at 741; alteration in Dura).

+++

[D]etermining whether some illegal agreement may have taken place between unspecified persons at different ILECs (each a multibillion dollar corporation with legions of management level employees) at some point over seven years is a sprawling, costly, and hugely time-consuming undertaking not easily susceptible to the kind of line drawing and case management that the dissent envisions. . . . Given the system that we have, the hope of effective judicial supervision is slim . . .

(Emphasis added; citations omitted). The Court expressly concluded that Conley v. Gibson's commonly cited "no set of facts" language does not mean that dismissal is proper only if the facts pleaded exclude the possibility of relief, and rejected the argument that Swierkiewicz had anything useful to say about pleading standards in general:

[T]here is no need to pile up further citations to show that Conley's "no set of facts" language has been questioned, criticized, and explained away long enough. . . . The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.

(Emphasis added).

The Court then laid out the test for pleading an antitrust conspiracy, one that will likely apply as well to other pleadings of conspiracy and other forms of illicit agreement:

[S]tating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.

Applying the pleading standard, the Court found plausible alternative explanations of the defendants' conduct:

In a traditionally unregulated industry with low barriers to entry, sparse competition among large firms dominating separate geographical segments of the market could very well signify illegal agreement, but here we have an obvious alternative explanation. In the decade preceding the 1996 Act and well before that, monopoly was the norm in telecommunications, not the exception. . . . The ILECs were born in that world, doubtless liked the world the way it was, and surely knew the adage about him who lives by the sword. Hence, a natural explanation for the noncompetition alleged is that the former Government-sanctioned monopolists were sitting tight, expecting their neighbors to do the same thing.

In fact, the complaint itself gives reasons to believe that the ILECs would see their best interests in keeping to their old turf.

(Citations omitted).

The decision is welcome news. Given the broad latitude given to attorneys in discovery and courts' traditional unwillingness to impose sanctions on all but the most obviously frivolous claims, there really is no meaningful substitite for vigilance in reviewing initial pleadings to weed out lawsuits that act as a drag on the American economy.

Allahpundit notes that Sandy Berger has surrendered his law license rather than face cross-examination about his destruction of original classified documents to obstruct the investigation of the 9/11 Commission. Allahpundit thinks that Berger would have been able to assert the Fifth Amendment to avoid answering those questions, but I'm not so sure; after all, he has already been sentenced for the conduct in question, and in light of the Double Jeopardy Clause the right against self-incrimination no longer attaches after sentencing.

Unless, of course, there are other crimes he could still be charged with besides the ones he was convicted and sentenced for.

Patterico responds again to the idea (see here, h/t here) that voter fraud is a non-existent problem simply because it is hard to get criminal convictions for voter fraud. More background in this post, and that's before we even get to some of the voter-turnout figures for cities like Philadelphia and Milwaukee (I've never heard a legitimate explanation as to how a large city can have voter turnout in excess of 100%).

A California appeals court throws out a lawsuit against the Internet Movie Database (IMDb), holding that under California's SLAPP statute (designed to reduce lawsuits targeting public speech), IMDb was entitled to immunity from suit for basing its listing of film credits on the credits used by the studios. The plaintiff claimed an entitlement to be listed as a producer on three films but had had his credits deleted by the studio after he left its employ.

As for the substantive issue Ann Althouse raises, I agree that blogging about pending litigation or judicial opinions is no more or less ethical than writing a newspaper op-ed. And anyway, blogging is more often going to be about the law rather than the evidence, and we expect courts to consider outside sources about the law.

Instapundit quotes Radley Balko arguing that the manifest injustice in the Nifong/Duke scandal should lead to a reassessment of the criminal justice system more broadly because

Nifong is by no means the only overly aggressive prosecutor in this country. And Durham is by no means the only jurisdiction where the wrong people have been wrongly accused. As Seligmann suggested, the only real difference may have been that the Duke players had the resources to fight back. Many others don't.

Balko's other examples support his thesis that the Nifong case certainly wasn't a complete outlier in terms of law enforcement misconduct, but I think Balko sells short a hugely significant aspect of the Duke case that isn't present in a lot of ordinary criminal cases: the fact that an elected prosecutor used a high-profile, highly publicized case to win an election by playing to race and class resentment, with the complicity of the media and powerful forces in the community (in this case, local and national African-American "leaders" and the Duke faculty). While that's hardly the first time that's been done, it does suggest that there was rather a stronger-than-usual motive for the DA and the cops (one of whom appears to have had a long-running vendetta against Duke students) to bend, break and mutilate the rules to frame innocent men.

One of the most persistent media myths about Thomas is that he follows the intellectual lead of fellow conservative Scalia...

...Questioned about that view of Thomas, Scalia replied, "It's a slur on me as much as it is a slur on him - like I'm leading him by the nose... I don't huddle with Clarence and say, 'Clarence this is what we're going to do.'" The myth's persistence, Scalia said, is "either racist or it's political hatred."

*There's a fair number of debates from the Virginia Tech shooting I don't have time to weigh in on now (there's the gun control issue; Glenn Reynolds aptly summarizes the case for less of it here, there's the university's reaction time, and there's the appalling spectacle of NBC News broadcasting the killer's videotape), though it seems the most important question is why it was so hard to get the killer out of circulation or at the very least on a list of people who should not be permitted to buy firearms, when he was giving off every sign of being a potential danger to himself and others and everyone around him saw those signs and several people tried to do something about it.

In all the horror I did find one moment of a little levity from this quote:

Briettney said her friend, who was shot in the knee, buttocks and shoulder, was expected to be all right.
"The one day he goes to class, he gets shot three times!"

*All three of my fantasy baseball teams have Felix Hernandez. This is not good news for any of them. Perhaps letting him throw a 111-pitch complete game on a cold April night in Fenway in his last start was not such a good idea.

*I definitely did not see a Mark Buehrle no-hitter coming. The past four years, Buehrle has finished second, second, first and first in the AL in hits allowed.

The actual story shows that Stern - of Anna Nicole Smith fame, not the radio shock jock - hired the lawyer from the JonBenet case. As in, a guy who represented the Ramseys. But to read the headline you would think he was a suspect in the JonBenet case, a combination that would keep the tabloids in business for centuries.

The district court held that Sec. 2554 violated the Establishment Clause and enjoined "the U.S. Secretary of Defense and his officers, agents, servants, employees and attorneys . . . from providing any aid to the Boy Scouts of America pursuant to 10 U.S.C. Sec. 2554, with the sole exception of aid provided or to be provided in support of the 2005 Jamboree that will take place from July 25 through August 3, 2005." (Emphasis added.) This order was dated June 22, 2005, and it notes that "[t]he injunction the plaintiffs are seeking specifically excludes the upcoming 2005 Jamboree." Whether the plaintiffs’ forbearance in this regard was the product of generosity, the spirit of compromise, or a desire to avoid the public relations fallout that would have attended their eleventh-hour scuttling of the 2005 Jamboree (if that’s what would have occurred), their conduct undermines any claim that they were suffering a grave constitutional injury. Constitutional litigation is legitimate only where there is a real injury and a legal remedy available to redress it. A willingness to postpone the remedy suggests that the plaintiffs' injury was not real but only a legal fiction to get their Establishment Clause claim before the court.

In fact, the Scooter Libby case provided a good example of why - recall that, if I remember correctly, Libby was acquitted on the count of lying to the FBI that related to an interview that was not transcribed in contemporaneous notes produced at trial, even though the jury convicted him of what was apparently the same general statements to the grand jury. And there were signs that the jury simply didn't believe that Fiztgerald had proven beyond a reasonable doubt what Libby said in that interview.

Any lawyer who has ever gone back to a deposition or court transcript - or even a legal brief - knows that you sometimes come away recalling that something was said that wasn't, at least in so many words. That's why transcripts are invaluable. And it's why recorded interviews or videotaped confessions are, when practicable, a tremendous step forward for the system.

The current congress in Venezuela has given their president broad powers to unilaterally enact laws for a period of 18 months in a wide range of areas. The result is that new laws and changes to existing laws are issued almost weekly. Last month, Venezuela's president announced plans to nationalize the country's oil, telecommunication and electricity companies. There are concerns that he may go further.

I spent over an hour meeting with a group of eight local attorneys in Caracas to discuss this fluid political situation and how it impacts their work. They represented a cross-section of the local legal profession - lawyers from firms and in-house with IT, energy and telecommunications companies. They very openly described the challenges of trying to advise their clients about laws that appear first in the morning newspaper with no prior legislative debate or announcement. Many of these new enactments were described as inconsistent or ambiguously drafted. This forces citizens to seek prior approval from the government before taking any action. And, there is no stare decisis to be relied upon for guidance.

It's a very anxious environment in which uncertainty pervades most aspects of life.

Though the Lawrence [v. Texas] framework might certainly apply to the instant case, the use of medical marijuana has not obtained the degree of recognition today that private sexual conduct had obtained by 2004 in Lawrence.

+++

We agree with Raich that medical and conventional wisdom that recognizes the use of marijuana for medical purposes is gaining traction in the law as well. But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is “fundamental” and “implicit in the concept of ordered liberty.” ... For the time being, this issue remains in “the arena of public debate and legislative action.” ...

As stated above, Justice Anthony Kennedy told us that “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Lawrence, 539 U.S. at 579. For now, federal law is blind to the wisdom of a future day when the right to use medical marijuana to alleviate excruciating pain may be deemed fundamental. Although that day has not yet dawned, considering that during the last ten years eleven states have legalized the use of medical marijuana, that day may be upon us sooner than expected. Until that day arrives, federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.

Translation: they will let us have our democracy a little while longer. Note that, as usual, the discussion assumes that the meaning of the Constitution can be changed by legislative action of a number of states that is smaller than the number expressly required to change the Constitution itself in Article V.
Granted, had the Supreme Court held - as it should - that the regulation of purely intrastate pot sales and use is beyond Congress' Commerce Clause powers, this issue would be where it belongs, with individual state governments. But in any event there is no warrant for declaring that a fundamental constitutional right is being grown under the Ninth Circuit's heat lamps.

"One of the things I am asked is if I believe in a living Constitution," Alito said in his speech, referring to a thought that the Constitution can reflect the times. "Umpires face this very same problem. For example, do we want a living strike zone?"

I guess he doesn't want to see Questec imposed on the federal courts...

One of the reasons I don't do media interviews is, in the past, the media often has its own script. One reason these stories are never told is that they are contrary to the script that people play by. The media, unfortunately, have been universally untrustworthy because they have their own notions of what I should think or I should do.

Thomas on his job as a Justice:

Isn't this where you want to be, where you can have the greatest impact?

Nah. I don't think you should do these jobs with that in mind. I don't think you should relish affecting people's lives like that, because you don't know whether you have the right answers. Along the way, you learn that.

Thomas also speaks warmly of friends at HC, including Ted Wells (who's been in the news lately defending Scooter Libby, though Wells himself is no Republican). On Holy Cross compared to Yale:

You went to Yale later on. Would you have wanted to do your undergraduate degree there?

No. No, I belonged at a school like Holy Cross. In fact, in today's world, I probably belonged at a place like the University of Georgia. Holy Cross was perfect for me at that time. I had enough on my platter.

Do you feel a sense of fraternity with the people you went to school with?

In a distant way, I absolutely do. We don't pal around. I absolutely admire Ted Wells and he and I are quite different. He's one of the finest lawyers in the United States. But you know what? It's not unpredictable. It's something that could have been predicted. Think of the people who took chances on him.

There was a wonderful fraternity-The Cross. When you were a crusader, you looked after each other-no matter where you were. That doesn't mean they would always be in a position to do you a favor. But they were there, just as a friend. I've never been turned away by a graduate of The Cross.

How did you find your experience at Yale?

Let me put it this way: It wasn't the kind of environment Holy Cross was and I would not have done well there. I don't fit in there. It wasn't about them. I just didn't fit. I don't fit in an orchestra. I don't care how great the orchestra is. It's nothing against Yale. I'm extraordinarily pleased that through serendipity or, I like to think, almost divine providence, I wound up at Holy Cross.

(I should add, having been both at HC and Harvard, that I feel exactly the same way).

One of the reasons I don't do media interviews is, in the past, the media often has its own script. One reason these stories are never told is that they are contrary to the script that people play by. The media, unfortunately, have been universally untrustworthy because they have their own notions of what I should think or I should do.

Thomas on his job as a Justice:

Isn't this where you want to be, where you can have the greatest impact?

Nah. I don't think you should do these jobs with that in mind. I don't think you should relish affecting people's lives like that, because you don't know whether you have the right answers. Along the way, you learn that.

Thomas also speaks warmly of friends at HC, including Ted Wells (who's been in the news lately defending Scooter Libby, though Wells himself is no Republican). On Holy Cross compared to Yale:

You went to Yale later on. Would you have wanted to do your undergraduate degree there?

No. No, I belonged at a school like Holy Cross. In fact, in today's world, I probably belonged at a place like the University of Georgia. Holy Cross was perfect for me at that time. I had enough on my platter.

Do you feel a sense of fraternity with the people you went to school with?

In a distant way, I absolutely do. We don't pal around. I absolutely admire Ted Wells and he and I are quite different. He's one of the finest lawyers in the United States. But you know what? It's not unpredictable. It's something that could have been predicted. Think of the people who took chances on him.

There was a wonderful fraternity-The Cross. When you were a crusader, you looked after each other-no matter where you were. That doesn't mean they would always be in a position to do you a favor. But they were there, just as a friend. I've never been turned away by a graduate of The Cross.

How did you find your experience at Yale?

Let me put it this way: It wasn't the kind of environment Holy Cross was and I would not have done well there. I don't fit in there. It wasn't about them. I just didn't fit. I don't fit in an orchestra. I don't care how great the orchestra is. It's nothing against Yale. I'm extraordinarily pleased that through serendipity or, I like to think, almost divine providence, I wound up at Holy Cross.

(I should add, having been both at HC and Harvard, that I feel exactly the same way).

It may not be enough anecdotes to constitute a trend, but a look at appellate court decisions over the past week gives reason to hope that the courts may finally be beginning to weary of interfering in the culture wars - but also offers some cautions about the consequences of each step towards an activist judicial role in those battles. A single step into the fray can take a log time and a lot of litigation to cabin.

We begin with two decisions from the DC Circuit. In the first, DKT Int'l Inc. v. U.S. Agency for Int'l Development (D.C. Cir. Feb. 27, 2007), a recipient of federal funds under a federal program designed to fight HIV/AIDS in the developing world filed suit, arguing that its First Amendment rights were violated by a condition that groups accepting funding certify that it has a policy opposing prostitution and sex trafficking. Yes, you read that right:

DKT alleged that it refuses to adopt a policy opposing prostitution because this might result in "stigmatizing and alienating many of the people most vulnerable to HIV/AIDS - the sex workers . . . "

The DC Circuit sensibly noted that compelling recipients of federal funds to agree with the message they were being paid to promote was well within the government's rights (as my Con Law professor used to say, "It's the government's nickel"):

In this case the government's objective is to eradicate HIV/AIDS. One of the means of accomplishing this objective is for the United States to speak out against legalizing prostitution in other countries. The Act's strategy in combating HIV/AIDS is not merely to ship condoms and medicine to regions where the disease is rampant. Repeatedly the Act speaks of fostering behavioral change, see, e.g., 22 U.S.C. § 7601(22)(E), and spreading "educational messages," id. § 7611(a)(4). The Act's stated source of inspiration is the success in Uganda, where President Yoweri Museveni "spoke out early, breaking long-standing cultural taboos, and changed widespread perceptions about the disease." Id. § 7601(20)(B). The Act details the program Museveni instituted, which primarily involved a "message" about "a fundamental change in sexual behavior." Id. § 7601(20)(C). "Uganda's success shows that behavior change . . . is a very successful way to prevent the spread of HIV." Id. § 7601(20)(D). Spending money to convince people at risk of HIV/AIDS to change their behavior is necessarily a message.

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The government's brief summarizes these points: "It would make little sense for the government to provide billions of dollars to encourage the reduction of HIV/AIDS behavioral risks, including prostitution and sex trafficking, and yet to engage as partners in this effort organizations that are neutral toward or even actively promote the same practices sought to be eradicated. The effectiveness of the government's viewpoint-based program would be substantially undermined, and the government's message confused, if the organizations hired to implement that program by providing HIV/AIDS programs and services to the public could advance an opposite viewpoint in their privately-funded operations."

A victory for democracy (this is an act of Congress supported by the Bush Administration), and for common sense as well, although the court noted (in footnote 4 on p. 9) that the government's policy could just as easily have been evaded by DKT if it simply separately incorporated its pro-prostitution organization and the organization receiving federal funds.

The second decision involved an effort to change behavior closer to home: the court in Decatur Liquors, Inc. v. DC (DC Cir. Feb. 27, 2007) rejected a challenge to a zoning rule in one ward of DC (sponsored by the now-Mayor of DC) barring the sales of single containers of beer, on the theory that single-container sales "were especially likely to lead to public drunkenness and other antisocial behavior." The court found that there were no substantial federal Constitutional bars to this rule, in particular rejecting an equal protection challenge to the fact that the rule encompassed only a single ward:

Council Member Fenty identified reasons why public drunkenness and other concerns were particularly acute in Ward 4, and, again, there can be no doubt that a link exists between the sale of alcohol and public drunkenness. Thus, plaintiffs' equal protection claim is insubstantial.

Now, one can agree or disagree with the policy, as with USAID's policy on prostitution, but in both cases the court gave room for democratically elected officials and their appointees to make a policy determination and implement it, so they could be judged on the results of that policy rather than being tied up in court trying to justify the rationale in abstract terms.

Next up, a decision from an intermediate appellate court in California, California Family Bioethics Council v. California Institute for Regenerative Medicine (Cal. App. 3 Dist Feb. 26, 2007), in which the court rejected a battery of challenges to Proposition 71, the initiative establishing taxpayer funding for stem cell research. The challenges included technical attacks (such as violation of the "single-subject rule" for ballot initiatives, a favorite of courts that disapprove of ballot initiatives, and various California Constitutional challenges) and charges that the initiative was misleading or misunderstood by the voters. The court rejected these arguments. First, the court noted that the proponents of the initiative had had to concede that stem cell research will provide uncertain benefits:

As the Attorney General observes, the ballot materials repeatedly stressed the speculative nature of any savings from research or earnings to the state from licensing royalties under the Cures Act.

More fundamentally, though, the court refused to second-guess the voters:

To say that the issues surrounding Proposition 71 and the issues surrounding stem cell research generally were well-aired prior to the election undoubtedly would be an understatement. Though many voters probably do not understand the science underlying somatic cell nuclear transfer, therapeutic cloning, and in vitro fertilization, they are not required to grasp the intricacies of this research frontier to intelligently decide whether to support a measure providing funding for such research. The ballot materials included a box entitled "Stem Cells and Stem Cell Research" that provided objective nontechnical answers to three questions: "What Are Stem Cells?," "What are Embryonic and Adult Stem Cells?," and "Why do Researchers Want to Study Stem Cells?" No more was required to permit voters to vote intelligently.

Unlike the DC Circuit decisions, the California decision won't make social conservatives happy - but it springs from the same basic principles of restraint. The voters were asked, the voters decided.

Then there's the Second Circuit, which was asked by a teachers' union in Port Washington Teachers Assn. v. Board of Ed. of the Port Washington Union Free School Dist. (2d Cir. Feb. 27, 2007) to strike down a policy promulgated by the school superintendant requiring teachers and staff to notify students' parents if they learn that the student is pregnant. The Second Circuit rejected the challenge, finding that the teachers and staff lacked standing, because they could not show that the policy placed them in direct conflict with confidentiality obligations (the policy "advises staff members to inform students that conversations about student pregnancies will not be held in confidence," is not mandatory, and the threat of suit by students is speculative).

The court's decision isn't a clear-cut victory for restraint: the Second Circuit avoided a premature decision on the constitutionality of the policy, but it also neutered the policy by concluding that it was outside the superintendant's powers under New York's Education Law.

Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn. The demeaning of young gay and lesbian students in a school environment is detrimental not only to their psychological health and well-being, but also to their educational development.

As Eugene Volokh pointed out at the time, this is classic viewpoint discrimination (the court also cited Confederate flags as a type of speech the schools may properly ban, while glossing over the fact that the shirt was worn to protest a school-sponsored Gay-Straight Alliance "Day of Silence"), holding that some students are entitled to greater protection from competing viewpoints than others. It's also a distinctively activist posture - Judge Reinhardt left the door open for students with more favored opinions to file t-shirt suits.

As it turns out, the Supreme Court (with only Justice Breyer dissenting) ended up vacating the Ninth Circuit's opinion, but on the narrow ground of mootness, without ruling on the merits - robbing the Ninth Circuit opinion of its precedential value, but going no further.

Finally, we turn to the progeny of Lawrence v. Texas, the 2003 decision in which the Supreme Court announced a constitutional right to sodomy between consenting adults, premised upon a right of sexual privacy:

The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.

Unsurprisingly, the Lawrence decision has spawned to a battery of attempts to expand its rationale to other laws governing sexual conduct of one sort or another. First, the Supreme Court this past week declined to review the decision of the Supreme Court of Utah in State v. Holm (Utah May 16, 2006), which among other things rejected (over a dissent) a claim that Lawrence invalidated Utah's prohibition on bigamy. The court first stressed the Lawrence Court's drawing of lines intended to limit the decision's application:

Despite its use of seemingly sweeping language, the holding in Lawrence is actually quite narrow. Specifically, the Court takes pains to limit the opinion's reach to decriminalizing private and intimate acts engaged in by consenting adult gays and lesbians. In fact, the Court went out of its way to exclude from protection conduct that causes "injury to a person or abuse of an institution the law protects."

The Utah court found that the threat presented by bigamy to the institution of marriage justified a departure from Lawrence:

In marked contrast to the situation presented to the Court in Lawrence, this case implicates the public institution of marriage, an institution the law protects, and also involves a minor. In other words, this case presents the exact conduct identified by the Supreme Court in Lawrence as outside the scope of its holding.

First, the behavior at issue in this case is not confined to personal decisions made about sexual activity, but rather raises important questions about the State's ability to regulate marital relationships and prevent the formation and propagation of marital forms that the citizens of the State deem harmful.

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[A] marriage license significantly alters the bond between two people because the State becomes a third party to the marital contract. . .

[M]arital relationships serve as the building blocks of our society. The State must be able to assert some level of control over those relationships to ensure the smooth operation of laws and further the proliferation of social unions our society deems beneficial while discouraging those deemed harmful. The people of this State have declared monogamy a beneficial marital form and have also declared polygamous relationships harmful.

The Connecticut Supreme Court, in State v. McKenzie-Adams, (Ct. Feb. 27, 2007), rejected a similar effort to extend Lawrence to the case of a male teacher who had consensual sexual relations with two 16-year-old female students and claimed a "right to engage in noncommercial consensual sexual intercourse with individuals over the age of consent." The court found that the teacher-student relationship is "an inherently coercive relationship, . . . wherein consent might not easily be refused." The Connecticut court, like the Utah court, found it necessary to place a limiting construction on Lawrence, albeit one that is in some tension with the Utah court's reading of the case:

We conclude that the defendant's reliance on Lawrence is misplaced because, contrary to the defendant's claim, the court in Lawrence did not ignore the relationship between the participants to the prohibited sexual act. The court merely cautioned that, when reviewing a statute criminalizing private noncommercial consensual sexual conduct, it is improper to focus on the right to engage in specific sexual acts, as the court had done in Bowers. Instead, the court should focus on the right to foster certain intimate relationships. Accordingly, pursuant to Lawrence, the critical inquiry is whether the prohibited intimate relationship is within the liberty interest of the participants to choose, not on whether a right to engage in sexual conduct exists generally.

Finally, the Ohio Supreme Court, in State v. Lowe (Ohio Feb. 28, 2007), rejected (again over a dissent) an effort to use Lawrence to strike down a ban on consensual sexual conduct between a stepparent and adult stepchild. The Ohio court stressed that Lawrence did not announce a new fundamental right, and thus concluded:

[T]the state in this case distinguishes Lawrence as being limited to consensual sexual conduct between unrelated adults. Lowe and his stepdaughter were not unrelated. The state argues that since Lowe has no fundamental right in this case, and the state has a legitimate interest in prohibiting incestuous relations and in protecting the family unit and family relationships, the rational-basis test should apply. . .

. . . Lawrence did not announce a "fundamental" right to all consensual adult sexual activity, let alone consensual sex with one's adult children or stepchildren.. . .

Ohio's statute serves the legitimate state interest of protecting the family unit and family relationships. While it is not enough under the rational-basis test for the government to just announce a noble purpose behind a statute, the statute will pass if it is reasonably related to any legitimate state purpose. . . . Ohio has a tradition of acknowledging the "importance of maintaining the family unit." A sexual relationship between a parent and child or a stepparent and stepchild is especially destructive to the family unit. R.C. 2907.03(A)(5) was designed to protect the family unit by criminalizing incest in Ohio. Stepchildren and adopted children have been included as possible victims of the crime of incest because society is concerned with the integrity of the family, including step and adoptive relationships as well as blood relationships, and sexual activity is equally disruptive, whatever the makeup of the family. . . . [P]arents do not cease being parents - whether natural parents, stepparents, or adoptive parents - when their minor child reaches the age of majority.

Accordingly, as applied in this case, R.C. 2907.03(A)(5) bears a rational relationship to the legitimate state interest in protecting the family, because it reasonably advances its goal of protection of the family unit from the destructive influence of sexual relationships between parents or stepparents and their children or stepchildren. If Lowe divorced his wife and no longer was a stepparent to his wife's daughter, the stepparent-stepchild relationship would be dissolved. The statute would no longer apply in that case.

(As Howard Bashman has noted - and as the Utah court discussed footnote 10 at page 23 of its opinion, and the Connecticut court addressed as well - there have been other challenges based on Lawrence as well. In one, a recent 11ith Circuit decision that upheld Alabama's ban on sale of sex toys on the grounds that unlike Lawrence "the statute at issue in this case forbids public, commercial activity" but also explicitly concluded that "public morality survives as a rational basis for legislation even after Lawrence, and we find that in this case the State's interest in the preservation of public morality remains a rational basis for the challenged statute." In another, the same issue presented in Lawrence was decided the opposite way in the context of the military's ban on sodomy by the Court of Appeals for the Armed Forces (discussed here by Phil Carter)).

As it turns out, both Rick Santorum and his critics can claim some measure of vindication from the Utah, Connecticut and Ohio decisions. Santorum (who, you will recall, gave his famous interview before seeing precisely how the Supreme Court would frame its decision) has been proven right about the flood of efforts to use Lawrence to overturn well-settled prohibitions on sexual conduct long thought to be uncontroversially subject to criminal sanction, as well as about the fact that members of the judiciary (including the dissenters in Utah and Ohio) would find those arguments appealing. Santorum's critics can point to the fact that the courts have, in fact, found ways to draw lines to keep Lawrence from having such slippery-slope effects.

At the end of the day, though, the stronger criticism of the Lawrence decision, like the Ninth Circuit's decision in the T-shirt case, is that it sucks the courts into making a whole new body of law to distinguish between conduct that is favored and protected by the Constitution, and conduct that is disfavored and properly subject to societal sanction or regulation through the democratic process. But that body of law is not based on anything in the Constitution, but rather in the courts' value judgments about social interests in the family, or the protection of students - judgments the legislatures are equally competent to make in a way that reflects the collective wisdom and experience of society. That's why even the victories over efforts to expand the Lawrence decision are signs of defeat for judicial restraint in the culture wars.

Jurors asked for the definition of "reasonable doubt" Friday after completing a shortened, eighth day of deliberations Friday in the perjury trial of ex-White House aide I. Lewis "Scooter" Libby.

"We would like clarification of the term 'reasonable doubt,'" jurors wrote. "Specifically, is it necessary for the government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt."

I think that's bad news for Libby because Judge Walton will tell them no, the standard for conviction isn't that high, and that will swing the one/several/all jurors who are leaning to acquit under that definition.

My guess is, that note was written in pique to get an answer that can be used to bludgeon a holdout into voting to convict. If you own shares in Libby getting acquitted, sell.

States that have enacted constitutional amendments banning the use of racial preferences in public college admissions have seen acceptance rates for minority applicants go down. As more states consider such measures, civil rights advocates said, private colleges may inherit those students who can no longer get into public schools, or who no longer want to attend public schools with increasingly homogenous student bodies.

In a small sign of sanity - or, more likely, of the tribute vice pays to virtue - Yale officials aren't buying this logic:

But Yale Dean of Admissions Jeff Brenzel said the ripples might not make it to New Haven. Since Yale typically competes for applicants with only a small number of universities, almost all of which are private, the University’s applicants and admissions officers are insulated from the shock that the recent bans have had in California and Michigan.

"With respect to achieving diversity at the most competitive schools, I think the key is always to evaluate students as individuals, in light of whatever opportunities and challenges they have been presented," he said. "Race and socioeconomic class are relevant aspects of an applicant's context, and to the extent we do a good job overall of weighing context, we will sustain a diverse undergraduate body with exceptional talent and promise."

Good for Yale. Granted, these are elite state colleges we are talking about, and granted, the Yale admissions office, like many in academia, is undoubtedly doing its bean-counting on a retail basis these days and learning to keep quiet about it. But even the necessity of driving race-consciousness and what is increasingly its open embrace of mediocrity underground is a victory of sorts.

A man who was fired by IBM for visiting an adult chat room at work is suing the company for $5 million, claiming he is an Internet addict who deserves treatment and sympathy rather than dismissal.

James Pacenza, 58, of Montgomery says he visits chat rooms to treat traumatic stress incurred in 1969 when he saw his best friend killed during an Army patrol in Vietnam.

In papers filed in federal court in White Plains, Pacenza said the stress caused him to become "a sex addict, and with the development of the Internet, an Internet addict." He claimed protection under the Americans With Disabilities Act.

Of course, he casually defames Vietnam vets in the process, with his claim that combat stress forced him into frequenting sex chat rooms at work.

If you have not already, you should read Tom Maguire's roundup of the trial testimony in the Libby case. What remains bizarre about the case is not that perjury charges were brought where there was no underlying crime - that does happen - but that perjury charges were brought where the prosecutor was investigating a whodunit and already knew when he started the investigation who done it.

Did Libby lie? I have to say, Maguire's portrait of the testimony certainly suggests that Libby's account was probably untrue, and difficult to square with the testimony - but also that (1) it would be very hard to have enough confidence in that conclusion to convict him, especially given how much trouble the prosecution witnesses had keeping their own stories consistent over time and (2) Tim Russert probably did not tell the truth either.

The biggest obstacle for Rudy Giuliani in the GOP primaries is his stance on social issues, which in many cases diverges from the views of most GOP primary voters and the party's platform. And for the most part, Mayor Giuliani is not backing off those positions, most notably his belief that abortion should be legal.

For me and other socially conservative, pro-life voters who are inclined to support Mayor Giuliani, however, there is one bridge he can build to make him acceptable - appoint judicial conservatives to the federal bench, judges who are likely to leave divisive social issues to voters in the states rather than attempt to settle them through extra-textual and ahistorical readings of the Constitution.

In convincing voters that Mayor Giuliani is serious about appointing those kinds of judges, there are few endorsements better than the one he just picked up: former Bush Administration Solicitor General, Reagan Administration head of the Office of Legal Counsel and long time Federalist Society lawyer Ted Olson:

"I admire his character, his capacity for leadership, his instincts, and his principles," Olson said over the phone this afternoon. He said he will help Giuliani raise money as well as offer advice on legal issues and domestic policy matters that involve constitutional questions.

Olson and Giuliani have been longtime friends since serving in the Reagan Justice Department from 1981-1983, when Olson was assistant attorney general in charge of the office of legal counsel and Giuliani was associate attorney general. Olson said they met with Attorney General William French Smith every morning and worked closely on a number of issues.

The support of Olson should help Giuliani in his quest to win over social conservatives who remain skeptical of his pledge to appoint strict constructionist judges.

"I've known him for 26 years and we've talked about this many times," Olson said. "He feels very strongly that people like Justice Scalia, Chief Justice Roberts, Sam Alito, Clarence Thomas, are the type of people that he would put on the court . . .I'm quite convinced that this is a genuine viewpoint that he has."

I have to express some surprise here - I saw Olson give a rousing introduction to John McCain at the Federalist Society Convention and figured he was on the McCain bus; apparently he was just being hospitable. It's a long race, and there will be many more tests ahead for Rudy's courtship of social conservatives. But today is a good day for that endeavor. Ted Olson embodies the judicial conservative movement as well as anyone outside the judiciary itself, and Rudy could do much worse than to listen to his advice.

The exact same people who are now demanding prison for Libby for not remembering who told him about Plame are the ones who told us it was perfectly plausible for Bill Clinton to forget that Monica Lewinsky repeatedly performed oral sex on him in the Oval Office. Even if chubby Jewish brunettes aren't your type, be honest: Which of the two events would stand out more in your memory? . . .

Here are some simple illustrations. If Clinton had been asked how many sexual encounters it took for him to remember Monica's name (six) and he got the answer wrong, it would not be perjury since, like Monica's name, it's an easy thing to forget.

If Clinton had been asked whether he talked to Rep. Jim Chapman and then to Rep. John Tanner, or to Rep. Tanner and then to Rep. Chapman while Monica was performing oral sex on him in the Oval Office and he got the answer wrong, that would not be perjury because it's not relevant to the investigation. (Correct answer: Chapman, then Tanner.)

But when Clinton was asked under oath -- in a case brought by Paula Jones under the law liberals consider more sacrosanct than any passed in the 20th century, Section 1983 of the Civil Rights Act: "Mr. President ... at any time were you and Monica Lewinsky alone together in the Oval Office?" and he answered, "I don't recall," that was perjury.

Perjury being a serious crime, I'm still willing to give Fitzgerald something of the benefit of the doubt on the decision to indict, but there's no question that his evidence is significantly weaker, the defense significantly more plausible, and the case for bringing charges at all significantly more attenuated than in Clinton's case.

Not only did Roe [v. Wade] not . . . resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level, where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue - as it does over other issues, such as the death penalty - but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.

Roe's mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. . . Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court, in particular, ever since.

It would, in fact, be a far better world if the President of the United States and the Justices appointed by the President had nothing to do with abortion policy, but in the world made by the seven Justices who made Roe and the four others (plus the author of Roe) who preserved it in 1992, abortion is a matter of federal law, to be addressed mainly by the selection of Supreme Court Justices.

It is possible that abortion opponents, like me, can hope that Justices who may be receptive to overruling Roe could be appointed by a President who is not. That, at least, is the central challenge for the presidential candidacy in particular of Rudy Guiliani, a long-time supporter of legal abortion who now seeks the presidential nomination of the Party of Life. The debate over whether Rudy can be trusted on the courts is for another day, but I must say that as much as I am willing to support him, I am not at all persuaded, and do not expect other pro-lifers to be persuaded, by this Deroy Murdock column arguing that abortion rates fell during Rudy's tenure as Mayor of New York. The problem is, he doesn't really have an argument that Giuliani had anything to do with this. About the only policy Murdock can point to to attribute this to Giuliani is that he was not as bad as Bloomberg:

New York pro-lifers concede that Giuliani never attempted anything like what current Mayor Michael Bloomberg promulgated in July 2002. Eight city-run hospitals added abortion instruction to the training expected of their OB-GYN medical residents. Giuliani could have issued such rules, but never did.

That's something - evidence that Giuliani is hardly a zealot on the issue - but cold comfort in trying to make him out as actively participating in the decline in abortion rates.

In fact, specious claims about rates of abortion have been a staple of abortion's most zealous cheerleaders, including Hillary Clinton, who claimed in 2005 that:

In the (first) three years since President Bush took office, eight states have seen an increase in abortion rates and four saw a decrease.

This was a thoroughly bogus claim that nonetheless survived vigorous debunking, but as you can see from the chart presented by FactCheck.org, abortion rates were declining gradually from about 1980 on nationwide, and underwent a particularly sharp drop between about 1989 and 1995, the tail end of which coincided with the beginning of Giuliani's mayoralty.

On the other hand - and this is a very important part - the rates may go up and down, but no matter how you slice them, the overall number of abortions in this country is horrifying, and you can play with the charts all day long and not get them to where that is not true. (Compare the number of abortions to the number of executions some time, if you don't believe me). Trends and blips don't change that reality, which is why the issue is still, fundamentally, whether abortions should be thinkable at all in a civilized society.

I know Murdock, like many conservative New Yorkers, believes that the nation needs Giuliani's brand of leadership and just wants to help. But if there's one lesson Giuliani will need to fully absorb if he is going to succeed in wooing pro-life voters, it's that we have heard a lot before and we are not easily fooled. Rudy has one, longstanding position on Life, and we have another. Pretending otherwise will not help. The middle ground, the sensible, moderate position, is what Justice Scalia spoke of 15 years ago - democracy, federalism, getting the Supreme Court out of the business of making the rules off the top of its head and restoring to individual jurisdictions the power to make their own rules in line with the varying standards of their own communities. Which is why the judiciary is the whole ball of wax, one that can't be sugar-coated.

Not for the last time, I am sure, House Democrats vote to raise taxes. Naturally they start with a politically unpopular target: domestic oil companies. The new taxes and fees, of course, raise the costs to domestic producers, thus benefitting their foreign competitors. Nice work. Hopefully, someone is keeping close track of how many times each of the newly elected Democrats ends up voting for a tax hike of one sort or other.

This aspect of the bill could be interesting:

The legislation "amounts to a taking of private property" by forcing oil companies to renegotiate leases they view as valid contracts, [Rep. Don Young, an Alaska Republican] said.

The bill would bar companies from future lease sales unless they agree to renegotiate flawed leases issued in 1998-99 for deep-water drilling in the Gulf of Mexico.

Because of a government error, the current leases do not contain a trigger for royalties if prices soared, as they have in recent years. As a result, the companies have avoided paying $1 billion in royalties so far and stand to avoid an additional $9 billion over the life of the leases, the Interior Department says.

The caselaw is narrowly divided over the circumstances under which government can change the terms of business with its contractors without incurring liability, but if all that's being done is to refuse future business as an incentive to renegotiate, I would think that doesn't amount to a taking of vested contract rights. But the devil will be in the details.

My initial reaction to the story of a 28-year-old mother of three who died from "water intoxication" after a radio show contest to see who could drink the most water without using a bathroom ("Hold your wee for a Wii!") was that (1) it was a horrible tragedy, especially for her kids, (2) it sounded like rather a dumb idea for a contest, but (3) I didn't think much of the inevitable lawsuit because really, radio show DJs aren't exactly rocket scientists and aren't any better situated than the average person to know the hazards of drinking too much water. The blind leading the blind, you might say.

You know, Chief Justice Roberts could write the phone book and make it readable. His report on judicial pay - really a brief directed to Congress - is lucid and to the point, focusing on how stagnant judicial pay skews the membership of the judiciary away from private practitioners. And he focuses at least implicitly on the fact that judicial independence is undermined if federal judges are likely to have one eye on the exit to make more money.

I don't quite buy the idea that judges are scandalously underpaid in the abstract. Yes, it's a challenge to live in New York City and put your kids through college on $150,000 a year, but let's be real here - a whole lot of people get by on a whole lot less (I'm guessing that even with the high cost of living here, the median income is significantly less than half the salary of a federal district judge), starting with the Marshals who protect the judges. What is ridiculous is that judges make less money than even junior associates at the big firms, lawyers who (as Roberts dryly notes) are not yet senior enough to set foot in those judges' courtrooms. The government has a persistent habit of paying its most skilled employees (like lawyers) far less than what they could make in the private sector, while paying its least skilled employees (like toll collectors) far more than what they could make in the private sector. Maybe fairness isn't the most compelling argument, but you can't deny the Chief's point about how pay affects the composition of the judiciary. Absent a good reason to think that judges really are worth a lot less than they were 35 years ago, Congress should listen to the Chief.

UPDATE: I should note one perverse trend, which I suppose could be argued to support low pay. Maybe this is just anecdotal, but it seems to me that the lower pay of government lawyers leads to more women taking those jobs. The economic reason is simple, and equally applicable to judging:

1. Government law jobs are seen by many lawyers as more desirable than private practice in its various forms, for a variety of reasons.

3. Women (especially female attorneys), being more likely than men to be married to a higher-earning spouse and less likely than men to be the sole breadwinner for a family of three or more, are likely to be less sensitive (on average) to salary in choosing legal jobs (this is even before we consider whether women are more likely to be sensitive to other considerations such as hours and flexible schedules).

4. Therefore, all other things being equal, you would expect more women to take the more desirable but lower-paying jobs, and more men to take the less desirable but higher-paying jobs.

Professional athletes make tons of money, travel frequently, and are often uneducated, financially unsophisticated, and/or marginally literate in English. Unfortunately, that combination makes them easy targets for ripoffs and scams.

But they still have an obligation to read their own bank statements to see if someone is stealing their money, as the Sixth Circuit affirmed today in a decision dismissing a lawsuit by Fernando Tatis against his bank based on embezzlement by a bank employee an employee of Tatis:

The underlying justification for this provision is simple: one of the most serious consequences of the failure of a customer to timely examine its statement is that it gives the wrongdoer the opportunity to repeat his misdeeds. Tatis had a duty to promptly examine his monthly statements and report to US Bank any unauthorized transactions. Because Tatis failed to report the first forged item within thirty days, he is not only precluded from recovering for that transaction but also for any additional items forged by the same wrongdoer.

(Quotations omitted).

UPDATE: Fixed the identity of the embezzler - see, I do sometimes read cases too quickly when I'm not getting paid to do so.

*I feel Milton Chappell's pain. Those chances don't come around very often, but the worst of it is having to sit silent while the other guy fails to make your best arguments.

*The real Muhammad. There are extremely good aspirational reasons why our government should continue to insist, however tendentiously, that the true and faithful interpretation of Islam does not include imitating the Prophet's own 7th century behavior, but Andrew McCarthy draws a pretty bleak picture of what that behavior entailed and why Muslims today have difficulty separating it from their doctrinal canon.

*Amateur hour for the Democratic Senate caucus, while Harry Reid circles the wagons around his tribal benefactors. I'm not in favor of the current campaign finance laws, but David Vitter is 100% right that the tribes, now that they are in a major revenue-raising business subject to extensive low-profile federal regulation (and thus a honey pot for Congressional venality), should get the same treatment as corporations. Of course, on the cui bono? side, I assume that Vitter, as the sponsor of this measure, and Mary Landrieu, the lone Democrat to support it, both care about the fact that the tribes compete with Louisiana gambling interests.

It's still amazing to me that the Michigan Civil Rights Initiative ran better with the voters than the GOP candidates did, even in a state where the Democrats control everything and have failed miserably in managing the state's economy.

If hypocrisy is the tribute vice pays to virtue, it warms my heart, in a small way, to see Justice Stevens declare that "I can see myself as a conservative, to tell you the truth, a judicial conservative." (H/t) Stevens is best described as a quirky maverick liberal who became, over time, a more doctrinaire liberal. Which is in some ways unsurprising - Justices naturally tend to change at least their tone based on the rest of the Court, and Stevens came to be the leader of the liberal wing, as Justice Blackmun was before him and after Justice Brennan retired, and just as Rehnquist was more measured as Chief Justice than as the lone dissenting conservative. A prediction: Justice Alito won't really come into his own as a distinctive voice on the Court until after Justice Scalia is gone.

Seriously, the evidence we have seen has been so overwhelmingly one-sided for the defense that Perry Mason would watch this trial and think, "damn, I never had a defense this good." DNA evidence of pretty much everyone but the defendants? Check. Wholly unreliable "victim" contradicted by the only witness in a position to corroborate? Check. One defendant with an ironclad, time-stamped, videotaped alibi? Check. Heck, Nifong shouldn't just be disqualified, he should be disbarred.

I am probably not alone in having decidedly mixed views of the death penalty. On the one hand, I've always had a gut-level affinity for applying the maximum penalty to the worst crimes, and while I am pro-life I recognize that there is a world of difference between executing the guilty after due process and exterminating the most innocent of lives without any legal defense at all. Certainly the State has every right to take a life for a life, by any measure; that's almost the definition of the purpose of the State. And my support for the death penalty tends to rise in direct proportion to my exposure to its opponents.

On the other hand, the Catholic Church has long been at best deeply skeptical about the death penalty (call me a theocrat, if you will, but that does matter), and one does have to bear in mind at all times that this is, after all, the deliberate taking of a particular human life. There are problems with administering the death penalty on a broad scale to ordinary criminals - not least that it's frightfully expensive - it's potentially unfair if applied selectively to such criminals, and the deterrent effect is questionable if you limit it to the really spectacular cases of gleeful and unambiguous evildoing.

The strongest case for the death penalty would seem to me to be where it is used as a weapon of societal self-defense to incapacitate members of an organized group - terrorists especially, but arguably members of organized criminal syndicates. Such organizations are notoriously effective at continuing to use imprisoned members as an asset. And - at least for those who are in the crime business as opposed to religious fanatics - executing members of a particular organization may have a more focused deterrent effect on their remaining cohorts.

One argument that sometimes gets made by death penalty opponents is that life imprisonment is worse punishment than death. But there's an obvious response to that: if it really is a more effective punishment, it should be viewed that way by people who are sentenced to death. And yet, virtually without exception, the vast majority of death row inmates take every possible avenue of appeal to overturn their sentences. If you count how they 'vote with their feet,' they vote overwhelmingly that they would prefer life in prison to execution.

The differences between the Crocker case and cases involving international terror organizations are so obvious that it is astounding that Koppelman never even tries to explain why they don't matter:

According to court documents, the investigation of Demetrius Crocker began in early 2004, around the time he told a man named Lynn Adams that Timothy McVeigh "[did] things right." Adams, who had met the Mississippi-born farmhand through a mutual acquaintance, began to hear from Crocker about his plans for mass murder. A resident of rural Carroll County, Tenn., an hour northeast of Memphis, Crocker told Adams he wanted to kill the black population of nearby Jackson, Tenn., with mustard gas and explode a bomb outside a courthouse.

By then, Adams had learned a lot about Crocker's background: his previous membership in the neo-Nazi National Socialist Movement, his anti-government beliefs, his fascination with Adolf Hitler and idolization of Oklahoma City bomber McVeigh. . . .

[snip]

[T]he Carroll County Sheriff's Department passed the case on to the FBI. Steve Burroughs, an FBI agent, began working undercover. Posing as an employee at the Pine Bluff Arsenal in Arkansas, where some of the country's remaining chemical weapons are stored to await destruction, Burroughs offered to help Crocker obtain explosive materials. Without Burroughs' prompting, Crocker became more ambitious. He began talking about blowing up a radioactive bomb outside the U.S. Capitol.

Unquestionably, Crocker was a serious danger and a would-be terrorist by any definition. But note what is missing from the case: no ties to a foreign organization, no logistical support or terrorist training, no indoctrination in the methods of secrecy. Regardless of the merits of the Padilla case - a subject for another day* in itself - the fact that Crocker was prosecuted does not show that similar methods would be successful against a radically more organized threat, nor does it disprove the Bush Administration's claim that different methods would be more effective in doing so.

In fact, recall that Koppelman's own account makes clear that catching Crocker was a stroke of blind luck, precisely because Crocker - unlike foreign jihadists with the support of a foreign organization - trusted the wrong guy:

Crocker . . . hadn't learned nearly as much about Adams. He didn't know, for example, that Adams was a former sheriff's deputy and a confidential informant for the Carroll County drug task force.

You want to take a chance that the next Mohammed Atta will be that stupid? The last one wasn't.

On the other hand, Koppelman does concede a point that undercuts much of Salon's ongoing theory that Padilla and other terror suspects were no danger because they were not all that bright:

There was an element of the fantastic in Crocker's plan; he hoped, he told Burroughs, to obtain the necessary plutonium for the dirty bomb he wanted to explode outside Congress by communicating with mail-order brides from Russia, one of whom would presumably put him in touch with a former KGB agent with access to nuclear material. His lawyers claimed he had an IQ of just 85.

But tapes of the conversations between Crocker and Burroughs reveal that Crocker knew what he was doing. He had made a version of Zyklon B, the gas used in the gas chambers in Nazi concentration camps, and he accurately described its manufacture. He had made nitroglycerin. He had the ingredients for a rudimentary bomb in his home, where he also kept several guns he told Burroughs he would use to kill any government agent sent to capture him.

I'm glad the government was able to take Demetrius Crocker out of circulation. But we were lucky, very lucky, just to get him - and that's one man working largely alone. Organized and well-funded terrorism is a greater threat, and we can't afford to wait to be lucky.

*I will note here that Koppelman takes everything Padilla's lawyer says at face value, including the fantastical claim that he was given a hallucinogen while being interrogated. Really.

*One of the more doleful implications of a very narrowly divided polity is the places it leads partisans to go in search of that one last vote that turns an election, a court, a majority, a presidency. So it is difficult for Republicans to resist the temptation to hope for a change in the Senate upon the news that South Dakota Democrat Tim Johnson is in critical condition after what may or may not have been a stroke. The right thing to do, of course, is to wish Senator Johnson and his family well (this is especially so because Tim Johnson, whatever his ideology, is not a loathesome human being like Ted Kennedy). Thinking otherwise may be only human, but it's a reflex to resist.

All things considered, it probably would be for the better if more states had laws that require the appointment of a replacement Senator of the same party, followed by a special election, if an incumbent dies or needs to be replaced - I believe such a law is in place in Hawaii, which has a GOP Governor and two elderly Democratic Senators, and a similar law (the details of which I forget) was enacted in Massachusetts when John Kerry was running for president. That said, existing practice in the absence of such a statute is to replace the Senator however the governor wants, as happened when the Republicans lost Paul Coverdell's Senate seat in Georgia and John Heinz's seat in Pennsylvania (both of which the GOP recaptured at the next election), or when Jesse Ventura appointed an independent to fill out Paul Wellstone's term.

The United States will face hatred and failure in the Middle East if the White House rejects the recommendations of the Iraq Study Group, Syria warned on Sunday, according to The Associated Press. Syria's ruling party's Al-Baath newspaper urged President Bush to take the group's report seriously because it would "diminish hatred for the U.S. in region," AP reported.

*Academic Elephant over at RedState notes a movement (see also here and here and here), apparently with at least tacit U.S. approval, to break up the current governing coalition in the Iraqi Parliament so as to remove the increasingly ineffectual al-Maliki as leader, build a new coalition that does not depend on the support of Muqtada al-Sadr, and set the stage for a second and hopefully final military showdown with the Sadrists. This would be a necessary step to finishing the job in Iraq.

*This is just a really cool article about turtles. It also pretty well captures the NY Times science section, which still does about the best stuff in the paper - but the headline writer couldn't resist going for an anti-people headline that is really only a small part of the article.

*Great New Republic profile of Sam Brownback, once you make allowances for Noam Scheiber's view of the Catholic Church as a secretive cult. I'm not inclined to support Brownback for president because I don't think he can win (not least of which, the man isn't exactly Mr. Charisma), but I probably agree with him on more issues than most of the other candidates. He'd make a great Senate Majority Leader someday.

One [reason] is the decreasing number of appeals filed on behalf of the federal government by the solicitor general’s office. Over the decades, the Supreme Court has granted cases filed by the solicitor general’s office at a high rate. In the mid-1980s, the office was filing more than 50 petitions per term. But as the lower federal courts have become more conservative and the government has lost fewer cases, the number has plummeted, opening a substantial hole in the court’s docket.

As recently as the court’s 2000 term, the solicitor general filed 24 petitions, of which 17 were granted. Last term, it filed 10, of which the court granted 4. This term, the solicitor general has filed 13 petitions; the court has granted 5, denied 3 and is still considering the rest.

This, I'm less convinced of:

In private conversations, the justices themselves insist that nothing so profound is going on, but rather seem mystified at what they perceive as a paucity of cases that meet the court’s standard criteria. The most important of those criteria is whether a case raises a question that has produced conflicting decisions among the lower federal courts.

I can certainly attest from my own practice that I routinely encounter issues of federal law that are deeply unsettled or as to which a circuit split exists (in areas like securities law, RICO, the Foreign Sovereign Immunities Act, class action procedure, etc.). The Court has been wise to trim its docket from the days of the 1960s-70s; the quality and care with which opinions are crafted has noticeably increased, and it's crucial for the Court to get things right because it often will not return to a particular question again for decades, if ever. But if the Court really wants to take on a few more cases it should have no problem finding appropriate vehicles to clarify unsettled issues.

I think it's too clever by half for courts to hold that minorities are protected from discrimination by a law that grants them the same rights as "white citizens", if "white citizens" (among others) do not have these rights to begin with. Put another way, it's hard to read the language of the 1866 Act as doing anything other than creating legal parity between whites and others. Any interpretation of the Act that disrupts that parity with regard to any right that is perceived to come within the protections of the Act lapses into incoherence.

Read the whole thing. Bonus fun fact from the opinion: did you know that "[a]t the time of the arrival of the first nonindigenous people in Hawaii in 1778, the Native Hawaiian people lived in a highly organized, self-sufficient subsistence social system based on a communal land tenure system with a sophisticated language, culture, and religion"? I have no specific quarrel with this statement, but did you know that it was the law of the land? See 20 U.S.C. 7512(2).

Despite increased security at courthouses following shootings in Chicago and Atlanta about one year ago, many judges are bringing their own guns into their courtrooms for protection.

Earlier this month, a Florida judge was ordered to accept mentoring after warning a defense attorney that he was "locked and loaded." In May, a judicial ethics committee of the New York State Unified Court System found that it was ethical for a judge to carry a pistol into his courtroom.

In Nevada, Oklahoma and Texas, incidences of violence in the past year have prompted new laws or solidified rules allowing judges to bring guns into courtrooms.

As I've said before, I'm something of a moderate on gun issues, but I could hardly imagine better news for fans of the Second Amendment than having people on the bench with a practical appreciation for the use of firearms for self-defense.

For those of you who follow class actions and/or securities litigation, today's Second Circuit decision, vacating the order by Judge Shira Scheindlin and ruling that the massive initial public offering securities litigation could not proceed as a class action, is huge news. Among other things, the decision brings the Second Circuit in line with the other Circuits to address the question of the standard of proof and the proper methods of weighing evidence in determining whether to certify a lawsuit as a class action, and required the panel to explicitly repudiate a number of prior opinions written by the members of the panel to get there.

Full disclosure: my firm represents one of the defendants, and I worked on the appeal (it's the reason I've been checking and refreshing the Second Circuit website like a rat trying to get the last pellet ever since the case was argued in June). I have a much lengthier summary of what this all means, but that's for the paying clients ;)

Which is sort of a shame - the underlying Sixth Circuit decision, if appealed to the Supreme Court, could have given the Court the opportunity to clarify a point I always thought was implicit but not properly explained in Bush v. Gore (see here, here and here): that the real risk of unequal protection of the law was not the existence of differing standards for vote-counting but rather the use of a standardless post hoc, non-statutory judicial remedy devised only after the election (and by an appellate court, no less, reversing the judgment of the trial court and overturning the pre-litigationstatus quo). In short, what the Court in practical effect did was to apply a heightened level of scrutiny to judicial remedies in election law cases filed after the election has taken place and not based on neutral rules laid down before the voting was done.

[L]ike software, most successful weapons systems are best debugged after being deployed. And some weapons systems were never tested at all before deployment.

Complex weapons systems have often been used successfully without proper testing. In 1940, Britain's new air defenses - radars, ground observers, anti-aircraft guns and squadrons of Spitfires and Hurricanes - had never been tested against even a small scale simulated attack. Yet they won the Battle of Britain. Likewise in the 1991 Gulf War the first two E-8A ground surveillance radar aircraft had only just begun a long testing process when they were shipped to Saudi Arabia. During the war they performed magnificently and now these aircraft are in high demand all over the world.

For decades, critics of advanced technology weapons have pointed to testing failures to support their drive to cancel the programs. Yet test failures are a normal part of the development process of any weapon system. Consider the M-1 tank. Its early tests were riddled with failures, yet now it is one of the most effective tanks in the world.

Yes, missile defense is expensive and unlikely to ever be 100% foolproof, and yes, we have other means of deterrence. But especially if we are unwilling or unable to act militarily to stop nations like Iran from getting nuclear weapons, the reduction in the potential threat to the U.S. and its key allies is enormous, and well worth the money. But then, it's never really been about the money but about guys like Carl Levin having an ideological fixation on stopping missile defense no matter the underlying facts. The Democrats' move will also break faith with and alienate one of our key allies, Japan. As usual, when they get on one of their left-leaning foreign policy jags, the Democrats treat the actual commitments of our allies as a worthless trifle.

*This December 2005 Iraq analysis from Steven den Beste looks prescient now. I'm still deeply alarmed by the mounting indications that Maliki is taking orders from Sadr and Sadr is taking orders from Iran. We are now locked in a battle for regional supremacy to see if the Iran-Syria-Hezbollah-Taliban-Al Qaeda axis can strangle democracy in its crib in Afghanistan, Iraq and Lebanon - a battle that looks more and more everyday like the battles we fought in Central America in the 80s and Southeast Asia in the 70s against Communism.

Scathing audits have outlined the LAFD's erratic disciplinary policies, poor leadership and hostile work environment, yet those reports have failed to dislodge the frat-boy culture. Maybe a public airing of its dirty laundry will.

Now, fixing a bad disciplinary system is fine, and stamping out racism is a noble cause. But a "frat-boy culture" is the concern of the law, why? These are firemen. They run into buildings that are on fire for a living, buildings that have a nasty habit of collapsing on or under them or otherwise acting in a highly dangerous and unstable fashion. Fire departments, like military organizations and police departments, are sustained in their dangerous mission by their unique institutional cultures. People who haven't walked a mile in their boots should be very hesitant to tamper with that culture.

What is more, what is often an issue is whether a person is perceived as being a member of a protected class, or what the employer knew about their membership in that class. Now, it's usually not hard to figure out who is black, or a woman, or in a wheelchair, but after that things get complicated, and with sexual orientation we enter unchated ground. Do we really want to create a whole cat-and-mouse industry over employers' knowledge of their employees' sex lives? A federal gaydar jurisprudence? ("The court finds that the company's awareness that the plaintiff enjoyed men's figure skating. Summary judgment denied.") If there's one thing the Democrats are experts at enacting, it's the Law of Unintended Consequences.

Or maybe, for their backers in the plaintiffs' bar, not so unintended.

*Good RCP Blog look at Barack H. Obama. I'm split on whether, as a matter of practical politics, this really is Obama's moment to run at the top of the ticket. On the one hand, his liberal record will only grow the longer he is in the Senate, especially now with a Democratic majority, blunting the appeal of his rhetorical moderation. The usual rule is that you run when people want you to run - that's the moment. On the other hand, it seems awfully presumptuous to run after one unfinished term in the Senate, when he has manifestly not accomplished anything. My guess is that moreso than John Edwards in 2004, Obama would be well served by running for VP even if on a losing ticket.

*Speaking of finding the right moment, the GOP field seems to be attracting people whose moments would appear to have passed - like Tommy Thompson and Frank Keating, two star GOP governors from the 1990s.

It is a joy and a pleasure to have Beldar back in the blogosphere. He has two posts up (here and here) dealing with a case I blogged about back in August: Patrick Fitzgerald's grand jury subpoena aimed at the Times' 2001 disclosure of upcoming searches and asset freezes to the targets of those searches, two foundations that were raising money for terrorists. The Supreme Court declined recently to grant emergency relief to stop the Times from having to comply with the subpoena. This post in particular is a must-read, as Beldar patiently explains why a recent Times editorial is so thoroughly disingenuous in its treatment of the Times' own legal position.

An article in the New York Times, discussing the fact that nothing has changed on the NSA wiretapping front - the program to listen to international al Qaeda phone calls (even ones entering or exiting the U.S.) continues with no Congressional action to give it clearer legal authority and no resolution to the court cases - begins oddly:

When President Bush went on national television one Saturday morning last December to acknowledge the existence of a secret wiretapping program outside the courts, the fallout was fierce and immediate.

If you didn't know the history, you'd almost believe that the President up and spilled the beans on this secret program on his own initiative - curiously absent is the role of the Times itself in revealing the program, an essential part of the news story (as well as of the political controversy) that the Times can't bring itself to mention.

You can read my coverage of the Federalist Society Convention at RedState here and here. At lunch at the convention on Thursday I sat down and started chatting with the other people at my table, one of whom introduced himself as Neil Lewis of the New York Times. I introduced myself by my name and city (as well as giving him my impromptu RedState.com press pass and giving him permission to quote me by name) and we talked about the aftermath of the elections; it was obvious that he was working on a story that would include the reactions of Federalist Society members to the Democratic takeover of Congress. Lewis seemed pretty much a Times reporter from central casting, a pleasant middle-aged bearded guy in a suit, with a bit of a tone of pretension in his voice and quick to quibble with a woman at our table who said she enjoyed Fox News and found it fair and balanced.

How glum was the mood? "Well, I guess I've just about climbed back from the ledge - the one I was about to jump off of," said Daniel McLaughlin, a New York lawyer who attended the convention. Mr. McLaughlin said he could not stop fretting over who would be confirmed to the federal bench in the next two years.

The part in quotes is, in fact, an accurate quote, albeit leaving aside the smile I delivered it with. (I should add that I thought that the line about coming in off the ledge was self-explanatory; I added the latter part when he asked for clarification). "Could not stop fretting" is another matter. As I have said to several people, I told him that I was more concerned about the loss of the Senate than the House because I'm concerned about getting the president's judicial nominees confirmed, but I didn't intend to leave him with the impression of despair; what I added was that since there were still 52 Senators left who voted for Justice Alito, my main concern was getting floor votes. That part didn't fit the theme of Republicans hanging their heads in defeat, I guess, and so it was blurred into "fretting".

All in all, a fairly typical mainstream media treatment - not a fabrication, no made up words; nothing so dramatic. In fact, as I said, the part in quotes is accurate, and might have bothered me a bit less if it stood on its own. And yet, there had to be a bending and selective truncation of my words to fit a pre-selceted narrative. Which, by now, is not news.

The DC Circuit this morning rejected a legal challenge to the Weldon Amendment for lack of standing. The Weldon Amendment prohibits recipients of federal grant funds from discriminating against individuals or entities that refuse to provide or refer for abortions. The court rejected claims that the amendment is so vague that an organization could have it struck down as a whole without proving that any of its members had actually been threatened with loss of federal funding. The court noted similar provisions that have been on the books for years without creating any vagueness issue, and invited the plaintiffs to seek clarification of the regulations under the statute from HHS.

To support his faulty memory defense, the defendant seeks to introduce at trial the testimony of Dr. Bjork "to show that it is entirely plausible, given how memory has been found to function, that Mr. Libby or the government witnesses - or both - have innocently confused or misremembered the conversations on which this case turns." Def.'s Mot. at 2. Specifically, Dr. Bjork would testify about thirteen scientific principles concerning human memory, including the process by which memory is encoded, stored, retained, and retrieved and various scientific bases for memory errors including "content borrowing," source misattribution, subsequent recall, divided attention, and "retroactive interference."

Now, while it's entirely possible that Libby may have at least a partial defense based on faulty recollection, I generally regard the proposal of an expert of this type as a bad sign for the defendant. It just reeks of quackery.

Very interesting piece here on a Q&A with Clarence Thomas, via Bashman. I met Justice Thomas in 1992, and accounts of his public appearances are consistent with my impression: he was witty and engaging and very unpretentious, but the wounds he carries from his confirmation hearings are never far from the surface.

But this may be the first article I have seen in which he explicitly defends why he doesn't say much at oral argument, and implicitly criticizes some of his colleagues, most notably Justice Scalia:

Thomas said he disapproves of what he calls increasingly aggressive questioning of attorneys by appellate judges from the bench. Thomas said that as a young state attorney general arguing before the Supreme Court of Missouri, he recalled justices who "actually allowed me to make my argument. They listened to what I had to say. ... Nor did I ever feel I had not been heard or did not have my day in court."

But Thomas said that kind of old-fashioned court etiquette has virtually disappeared. "It seems fashionable now for judges to be more aggressive in oral arguments," he said. "I find it unnecessary and distracting. ... I truly think oral arguments would be more useful if the justices would listen rather than debating the lawyers. ... I think the judges need to listen if the arguments are to be effective."

On his own work habits: "Never do anything unnecessarily to decide a case," he said. "Do not ask questions that are unnecessary."

That means Thomas is more likely to sit and listen to an oral argument than attempt to question the lawyers who present them.

"My job is not to rape your argument, not to make your argument, not to hurt your feelings," the associate justice said.

On the latter, the people who mocked the slippery slope arguments yet again owe Justice Scalia and Senator Santorum an apology:

Emanuel relies heavily on a 2003 U.S. Supreme Court ruling, Lawrence vs. Texas, that struck down as unconstitutional a state law prohibiting "deviate sexual conduct" between same-sex adults. The nation's highest court in that ruling took note of the "emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex."

The legal ramifications of the Lawrence ruling are still a matter of considerable debate. Emanuel, in his brief and oral arguments, quoted noted constitutional scholar Laurence Tribe, stating in a 2004 Harvard Law Review article that Lawrence's "full reach should prove expansive."

Thursday, Senior Justice David M. Borden asked just how expansive: "Has any court put blinders on and said you can't look at the relationship" between the sexual partners?

"I think Lawrence comes close," Emanuel replied. "I have no illusions. This is a difficult claim we've brought before the court. But Lawrence provides a basis for a good-faith claim. This is not a frivolous case.

"As of today, no court has yet adopted the position we're advocating, that Lawrence represents a fundamental right to sexual freedom," Emanuel said.

As I said at the time, I hold no brief for anti-sodomy laws, but the erosion of the principle that laws grounded in community moral standards are a rational and permissible basis for democratic lawmaking is a dangerously intrusive and anti-democratic, as well as irredeemably inconsistent with two centuries of constitutional tradition.

Now, I likes me a good technical argument as much as the next lawyer, but this strikes me as going a bit far. A federal statute says the court can punish as contempt "[m]isbehavior of any person in its presence or so near thereto as to obstruct the administration of justice." A plaintiff (the husband of an ex-con, I should note, suing over a beating at the hands of a fellow inmate) attempted to tamper with a witness, during jury deliberations, in the courthouse cafeteria. The Second Circuit, in its opinion in United States v. Rangolan, reverses her contempt conviction:

Rangolan's misbehavior occurred not in court, but in a cafeteria ten floors below the court room. Unlike jury rooms, witness rooms, or immediately adjacent hallways, the cafeteria is not a place "set apart" for official court business, or for the use of jurors or other trial participants. The juror was not on official business but was simply having breakfast. Moreover, Rangolan's misbehavior took place at 9:15 a.m., before the court was in session. ...

Deeming the court "present" in a public cafeteria ten floors below the courtroom and not shown to have been separated out for court business, at a time when court is not in session, distorts the important geographical and temporal limitations Congress intended when it passed the predecessor to [Section] 401(1) to, in part, limit the contempt power.

For many of the same reasons, we also conclude that Rangolan's misbehavior does not qualify as conduct "so near to" the court . . . Suppose, for example, that instead of confronting the juror in the cafeteria, Rangolan had driven several miles to the juror's home and handed him the stack of papers, or that Rangolan confronted the juror in a coffee shop across the street from the courthouse. Under the government's theory, Rangolan would still have violated [Sec.] 401(1) because the trial judge would have been forced to turn his attention away from the trial to address the misconduct and a delay would have resulted. This result, of course, ignores [a 1941 Supreme Court case] which requires us to focus on the geographic proximity of the misbehavior, not simply on whatever obstruction may have occurred. In other words, the degree of obstruction would have been largely identical if the misbehavior occurred in either the cafeteria or the juror's home or the coffee shop, yet it could not be seriously argued that the misconduct in the latter locations occurred geographically "so near" to the court as to obstruct justice. While it may have occurred in the same building, we nonetheless conclude that Rangolan's misbehavior in the cafeteria is geographically and conceptually more akin to misbehavior across town at the juror's home or in the coffee shop, than it is to misbehavior in a jury room, witness room, or hallway adjacent to the courtroom.

I really fail to see why it is so difficult to conclude that the contempt statute covers jury tampering on federal property, in a cafeteria no juror would ferquent but for the fact that they were at the courthouse on court business. After all, while a determined litigant could visit a juror's home, that takes hard work; approaching the jurors when they are within the courthouse walls is a temptation to the unscrupulous litigant precisely because the inside of the courthouse is "so near" - and the ease of reaching jurors on the grounds of the court itself, when they have appeared on court business, is precisely what makes such tampering uniquely likely "to obstruct the administration of justice."

Now, Libby - as a man who took an oath as a public servant and was zealous in defense of national security - shouldn't threaten to reveal damaging classified information as a "graymail" tactic against the Government. Then again, if such information is genuinely critical to the ability to give Libby a fair trial, perhaps the prioritization of prosecuting him needs to be re-evaluated. But the citation to the Moussaoui case also reminds us yet again of the fact that the legal system's need to evaluate all the relevant and admissible evidence is one reason why defendants who mean to make war on the nation should not be tried under that system at all.

Yeah, another bunch of links and quick hits, heavy on politics and war.

*First of all, for my own purposes I should note here that as of this week I have been at my law firm for 10 years. A milestone, of a sort.

*This putatively hostile profile of Mitch McConnell makes him sound like the ideal leader for a legislative majority - a guy who's a brilliant master of parliamentary rules and techniques, a workhorse rather than a showhorse who has a keen understanding of how to hold his caucus together and has been an instrumental player in some of Bill Frist's biggest successes. The authors criticize him for not writing "landmark legislation" or taking to the airwaves, but they have to concede that McConnell has done, in his fight against campaign finance regulation, the very thing the Framers most hoped a a Senator would do - wage an unpopular one-man battle against landmark legislation that is simultaneously self-interested (by protecting incumbents) and hostile to our constitutional guarantees of free speech. And as for his partisanship, (1) the authors don't really even pretend that Tom Daschle wasn't an arch-partisan and (2) "bipartisan" legislation is usually a warning to watch your wallet anyway.

*While I share David Frum's frustration that Bush didn't spend more of his UN speech pressing the case against Iran, I thought this passage in the speech was one of the best articulations yet of why the battle against tyranny in the region is so important to the battle against terrorism - as Bush's predecessor would say to himself, "it's the propaganda, stupid":

Imagine what it's like to be a young person living in a country that is not moving toward reform. You're 21 years old, and while your peers in other parts of the world are casting their ballots for the first time, you are powerless to change the course of your government. While your peers in other parts of the world have received educations that prepare them for the opportunities of a global economy, you have been fed propaganda and conspiracy theories that blame others for your country's shortcomings. And everywhere you turn, you hear extremists who tell you that you can escape your misery and regain your dignity through violence and terror and martyrdom. For many across the broader Middle East, this is the dismal choice presented every day.

This is, by the way, a signal difference from the Cold War - the Communist bloc may have fed its citizens propaganda, but at least they were literate and educated, and thus easier to reach with a contrary message. Illiteracy is a particular problem in Egypt and one of the reasons why Egyptian society presents a greater danger than, say, Iraq or Iran of the populace embracing Islamist nutcases if given the vote.

There's an illuminating historical incident from the tenth century that deserves wider dissemination, and that the Pope might have used in lieu of Manuel II Paleologue's quote. That Emperor was the last to enjoy a full reign in a free Empire; but nearly four hundred years before, the Empire was enjoying a resurgence. Manuel II Paleologue ruled barely more than Constantinople itself - but Nikephoros II Fokas ruled from Italy to the Caucasus, and from Bulgaria to Syria. He was a longtime foe of the Muslim Caliphate, and he observed that a signal advantage of the Muslims was their jihad doctrine. The Orthodox Church then - as now - regarded war as a regrettable necessity, with emphasis on the regrettable part, and soldiers returning from war would be made to perform some manner of penance before again receiving communion. By contrast, Nikephoros II Fokas observed that the Muslims who went to war were directly fulfilling the commandments of their faith, and were accordingly more motivated, violent, and relentless. The Emperor decided that the Christians needed a similar spiritual edge, and so he asked the Patriarch Polyeuktos in Constantinople to declare that any Christian who fell in battle was automatically a martyr. In effect, he requested a Christian version of jihad. The Patriarch and the entire Church hierarchy, so often in that era mere tools of Imperial policy, refused. The Emperor was forced to back down, and within a few short centuries, the Empire was overrun by the Muslims.

Trevino also points out something else. While the founder of Christianity was martyred by the State and the Church endured three centuries of persecution from its founding, Islam began as, and has for most of its existence been, the religion of power and the powerful, united with the State. There are examples of Muslims living under both the culturally light yoke of colonialism (in British India and the brief Western mandates over the former Ottoman territories from 1918 until just after WW2) and Communist opression (mainly in Kazakhstan and the other southern republics that left Russia at the collapse of the Soviet Union), but Islam for the most part does not share the heritage of other faiths in surviving separate from and in opposition to the State. None of this suggests that Islam is necessarily or by nature bad or dangerous, but it does underline why Islamic doctrines have been such potent and hard-to-defuse weapons in the hands of actual and would-be tyrants.

"There are some stand-out cases and each of them will test whether this is a 'restrained' Court," said constitutional law scholar Douglas Kmiec of Pepperdine University School of Law, referring to the abortion, affirmative action and punitive damages challenges.

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Kmiec concedes that it is "very difficult at first blush" to see why a conservative, restrained court would take the [partial-birth] abortion challenges, since there is no circuit split and there is a recent precedent.

"Maybe the answer is: It's not a fully restrained court, especially in this case where Justice Kennedy has been waiting to prevail, and justices [Clarence] Thomas and [Antonin] Scalia have not fully signed on yet to the Roberts-Alito method of decision-making," said Kmiec.

Um, the Executive Branch has asked the Court to reverse lower court rulings that struck down an Act of Congress. I don't care what your judicial philosophy is in deciding a case like that, the Court is almost always going to take a case in those circumstances; it would be a serious dereliction of its institutional role not to.

It's also an issue that supports Wall Street Journal columnist Holman Jenkins' theory that the influence of money in politics can be a good thing - there just aren't that many votes to be had in fixing a complex business problem like patent litigation reform, and there's a lot of hard labor involved in understanding the issue, drafting reasonable legislation and pushing it through the laborious legislative process. But a fix is both good public policy and - let's face it - likely to generate a lot of interest from contributors. You don't have to be a public choice scholar to understand why an issue like this gets Congress' attention, and why it would never hope to get Congress' attention if campaigns were publicly financed. And that would be a bad thing. Because, at the end of the day, legislators shouldn't live in isolation of the economic facts of life that affect their constituents.

Few if any areas of the law are more in need of Congressional reform than our employment discrimination laws, which are invoked with monotonous regularity by people who have done any number of things to earn getting fired or passed over for promotion. Thankfully, some of the worst abuses can be curbed simply by having judges apply a little common sense. Consider today's opinion in EEOC v. Watkins Motor Lines, No. 05-3218 (6th Cir. Sept. 12, 2006) (H/T Bashman).

The EEOC - which, last I checked, was part of the Bush Administration - brought an Americans with Disabilities Act case against a trucking company on behalf of one Stephen Grindle:

In August 1990, Stephen Grindle . . . was hired by the defendant, Watkins Motor Lines . . . , as a Driver/Dock Worker. Approximately 65% of his time was spent performing dock work including loading, unloading, and arranging freight. The job description for this position notes that the job involves climbing, kneeling, bending, stooping, balancing, reaching, and repeated heavy lifting.

At the time of his hire, Grindle approximates that he weighed about 345 pounds. During the next five years, his weight ranged from 340 to 450 pounds. Grindle knows of no physiological or psychological cause for his weight.

In November 1995, Grindle sustained an on-the-job injury. He was climbing a ladder at the loading dock and a rung broke. He started to fall and caught himself but, in doing so, he injured his knee.

Eventually, Grindle was sent to a doctor:

On June 26, 1996, Watkins ordered Grindle to see the industrial clinic doctor, Dr. Walter Lawrence. Dr. Lawrence found that Grindle had a limited range of motion and that he could duck and squat but he was short of breath after a few steps. Dr. Lawrence also noted that "[o]n physical examination, the most notable item is that the patient weighs 405 lbs." Dr. Lawrence concluded that, even though Grindle met Department of Transportation standards for truck drivers, he could not safely perform the requirements of his job.

The trucking company, not wanting to employ a guy who could not safely do his job, fired Grindle, and - of course - litigation ensued. The Sixth Circuit concluded that morbid obesity that has no physiological cause is not an "impairment" within the meaning of the ADA's proscription on firing qualified individuals with "a physical impairment that substantially limits one or more of the major life activities of the individual":

[I]t is clear that [in a prior decision] we did not intend to hold that any abnormal physical characteristic is a potential ADA impairment when we stated that "[the plaintiffs] have not alleged
a status which is the result of a physiological condition or otherwise beyond the range of 'normal.'" Rather, we simply intended to emphasize that the plaintiffs' conditions were far from constituting an ADA impairment as, not only were the plaintiffs' conditions not physiologically caused, but they were not even abnormally obese. To interpret the above sentence any other way would suggest that we held that any physical abnormality - for example, someone extremely tall or grossly short - may be ADA impairment. We decline to extend ADA protection to all "abnormal" (whatever that term may mean) physical characteristics. To do so "would make
the central purpose of the statutes, to protect the disabled, incidental to the operation of the 'regarded as' prong, which would become a catch-all cause of action for discrimination based on appearance, size, and any number of other things far removed from the reasons the statutes were passed."

(Citations omitted). The court did, however, leave open the possibility that future claimants could come up with a theory under which their morbid obesity - or, even, according to one concurring judge, all morbid obesity - might be considered a disability covered by the ADA.

Of course, for different people, there may indeed be reasonable differences in the degree to which they are responsible for their weight problems. But there's really no evidence that Congress ever intended to make a federal case out of firing people who are too fat to do their jobs. The ADA has spawned endless litigation over what constitutes a disability (the paradigmatic case of office workers in wheelchairs is by far the exception rather than the rule in ADA litigation), often extending to alleged mental deficiencies that amount to people who can't get their jobs done or control their behavior. And as with the case of teachers who can't pass a simple test, and Exxon's decision after the Exxon Valdez case to stop hiring drunks as ship captains, what is needed at the time of filing of all these cases is a much more rigorous showing by the plaintiff that the employer did not have a plausible, job-related reason for an adverse employment action, a test these kinds of suits should have failed at the very outset.

I dare anyone to read this Third Circuit opinion, detailing the Byzantine federal and state regulatory regimes governing Pennsylvania milk farmers, and not come away feeling more libertarian than they were before. This is the 21st century; there is absolutely no reason to have any of these rules. If a business' profits is threatened by price wars, let them happen and shake out the weak producers. If the business is cyclical, there are plenty of financial hedging strategies available even to small businesses like family farms through today's banking business. And if retailers are worried about price gouging, they can sign long-term contracts. Milk is big business. The market can handle it just fine.

Following on the heels of the crisis in hiring of female Supreme Court clerks in the 2006-07 Term, a new report raises troubling questions about race and gender equity in the wealth of Supreme Court Justices. (H/T WSJ Law Blog). Apparently, on average, African-American Justices have between 4% and 5.8% as much wealth as white Justices. There's also a significant gender gap: female Justices have between 3 1/2 and 4 times as much wealth as male Justices. Clearly, this is a disturbing trend requiring investigation by the media and Congress and perhaps remedial legislation.

If you are tempted to wonder at why our public schools operate at such a disadvantage, two recent decisions by the United States Court of Appeals for the Second Circuit help illustrate the problem. In the first, Gulino v. New York State Education Department (2d Cir. Aug. 17, 2006), the Second Circuit reinstated a race discrimination suit against the New York State Education Department based on the theory that a test of "basic college-level content" that asks applicants to get just two-thirds of the questions right is racially discriminatory because it has a "disparate impact" on African-American and Latino teachers. The test, developed in response to a 1988 task force report on problems with teacher quality, is described at pages 11-13 of the opinion.

There are two immediate things that rub me the wrong way about this notion. First of all, isn't it racial bigotry to assume that lower pass rates for African-American and Latino teachers are because they are African-American and Latino, and therefore likely to persist indefinitely into the future? This isn't the 1870s, when it was reasonable and realistic to assume that black people were illiterate sharecroppers. If there are higher fail rates, that presumably is because African-American and Latino applicants are suffering from some intervening problem not caused by skills testing - i.e., bad schools in their own neighborhoods.

And second, why are those schools bad? In part because lawsuits like this one force the state to keep hiring teachers who lack basic competence in their subject matter. And where do you think those incompetent teachers end up teaching? There's your real disparate impact.

Instead of recognizing and deferring to the common-sense judgment that a test of basic educational competence is related to the job of being a teacher, the Second Circuit (relying, it must be said in the court's defense, in substantial part on Supreme Court precedents) sets a demanding test of empirical expert evidence before a public school can "validate" a test's relatedness to job performance. (The validation standard is discussed at pp. 36-48 of the opinion). The ridiculousness of this is exacerbated by the difficulty of finding an objective measure of teacher job performance. Nowhere in this process are schools allowed to excercise common sense in figuring out what makes a good teacher.

The second decision came yesterday in Guiles v. Marineau (2d Cir. Aug. 30, 2006), in which the Second Circuit rejected a school's effort to prevent a student from wearing a T-shirt with obnoxious political content:

The front of the shirt, at the top, has large print that reads "George W. Bush," below it is the text, "Chicken-Hawk-In-Chief." Directly below these words is a large picture of the President's face, wearing a helmet, superimposed on the body of a chicken. Surrounding the President are images of oil rigs and dollar symbols. To one side of the President, three lines of cocaine and a razor blade appear. In the "chicken wing" of the President nearest the cocaine, there is a straw. In the other "wing" the President is holding a martini glass with an olive in it.
Directly below all these depictions is printed, "1st Chicken Hawk Wing," and below that is text reading "World Domination Tour." The back of the T-shirt has similar pictures and language, including the lines of cocaine and the martini glass. The representations on the back of the shirt are surrounded by smaller print accusing the President of being a "Crook," "Cocaine Addict," "AWOL, Draft Dodger," and "Lying Drunk Driver." The sleeves of the shirt each depict a military patch, one with a man drinking from a bottle, and the other with a chicken flanked by a bottle and three lines of cocaine with a razor.

Slip op. at 3-4. The court, noting the Supreme Court precedents granting free speech rights to public school students in their attire but permitting some limitations on those rights in the case of "plainly offensive" speech, concluded:

While what is plainly offensive is not susceptible to precise definition, we hold that the images depicted on Guiles's T-shirt are not plainly offensive as a matter of law.

Id. at 16. On the law, this was probably correct, and of course I don't think this sort of concentrated moonbattery, silly as it is, should be illegal. But I fail to see what interest of society is served by letting school kids wear shirts with any sort of message to school. (I went to schools with uniforms and, in high school, a dress code that had no room for T-shirts). Granted, this particular incident came to a head on a class trip, but why schools should end up being embroiled in these sorts of controversies at all is beyond me.

Judicial Watch argues that Judge Anna Diggs Taylor had a conflict of interest in the NSA surveillance case because (1) one of the plaintiffs was the ACLU, (2) Judge Taylor is a Trustee of an organization that donated tens of thousands of dollars to the ACLU, and (3) the organization states that its donations are approved by its Trustees, thus indicating that Judge Taylor was personally involved in directing resources to the very advocacy group that came before her.

This is, I should stress, not a financial conflict - Judge Taylor's finances are unaffected by this case, as are those of the organization for which she is a trustee. The question is one of impartiality - can the judge be impartial, or would a litigant expect a fair hearing, where the case is advocacy litigation brpught by an advocacy group financially supported by the judge? Now, I tend towards the view that legal ethics standards shouldn't be unrealistic; judges live in the real world, they have opinions, and they do not come to the bench as a blank slate. The real question is, if you knew nothing else about this judge's background and hadn't had any proceedings yet before her, would you want a different judge if you discovered this connection to one of the parties? I think, were I the government, I might have. But much would depend on the facts - if the donation is one of many and not a large proportion of the organization's budget, it doesn't necessarily say a lot about the judge's views, whereas if she is helping steer a major proportion of the group's funds to promote the ACLU's mission, that's rather a different story.

(This is one way in which the whole absurd Vanguard-Alito flap was obviously ridiculous - given the minuscule and attenuated nature of then-Judge Alito's interest in Vanguard, no reasonable person would have cared unless they already had some other reason to want him off the case. The kerfuffle over Justice Scalia going hunting with Dick Cheney is perhaps a bit closer, but the recusal standards for Supreme Court Justices have to recognize that most of them have ties to major players in DC politics).

A new decision on the Espionage Act clarifies the government's ability to prosecute leaks relating to national security, but also places a new limitation on such prosecutions where they are based upon oral disclosures rather than leaked documents - a distinction that does not make a ton of policy sense - and also limits prosecutions for leaks that merely benefit non-hostile governments. Bear with me as I explain why.

I have written extensively before on the Espionage Act (18 U.S.C. 793) here, here, here and here. Basically - and you can get the details in my earlier posts - the statute prohibits anyone (whether or not they have security clearance or other authorization to learn classified information) from (1) willfully disclosing (2) information relating to the national defense (3) to those not authorized to receive it (4) while having reason to believe that the disclosure of such information could be used to injure the United States or aid some foreign power. As I have argued before, the willfulness requirement means that the government, in an Espionage Act prosecution, must prove that the "leaker" knew that he or she was acting unlawfully; the statute is not a strict-liability rule for inadvertent leaks or bad judgment.

The Espionage Act has been much discussed of late for two reasons. Some on the Left have argued that it should have been used against Karl Rove and others if they were involved in disclosing Valerie Plame's status as a CIA employee; I have argued, and the absence of a indictment on these grounds has borne out my observations, that it was unlikely that there was sufficient evidence to show that Plame's status was information relating to the national defense that could be expected to harm national security and - most particularly - sufficient evidence to show that anyone involved in disclosing her name thought they were acting unlawfully.

On the Right, the Espionage Act has been argued as a basis for prosecuting those government officials who have leaked the details of secret programs central to the War on Terror (the NSA surveillance program and associated data-mining operations, the existence of supposed "secret CIA prisons", the program to track international bank transfers) and, possibly, as a basis for prosecuting the New York Times and its reporters for publishing such leaked secrets, knowing they were classified information critical to the war effort and - in some cases - knowing that the Executive Branch was strenuously objecting to publication.

In such circumstances, then, the scope and applicability of the Espionage Act is of great importance. Which is why a recent opinion from the Eastern District of Virginia in United States v. Rosen is interesting. The defendants in Rosen are former AIPAC officials (i.e., lobbyists for pro-Israel positions) who allegedly obtained leaked intelligence of varying types, including draft U.S. policy documents, intelligence about Al Qaeda, and intelligence about potential attacks on U.S. troops in Iraq, from Defense Department official Larry Franklin and passed such information on to foreign government officials (apparently from Israel) and members of the media, among others. Franklin has pleaded guilty, but the two remaining defendants, Steven Rosen and Keith Weissman, challenged the indictment on several grounds, all of which were rejected.

First, they argued that the statute's definition of "information" only protects documents and not orally transmitted information; the court rejected this one easily. Slip op. at 13-17. Second, they contended that the Espionage Act is unconstitutionally vague as applied to them and did not put them on notice of the risk of prosecution because orally transmitted information does not contain the clear stamps of "TOP SECRET" and the like that applies to classified documents. The court - echoing, I should note, my prior analyses of the Espionage Act's state of mind requirements - found that any vagueness was cured by the requirement that the government prove that the information was closely held by the Executive Branch and by statute's strict state of mind requirements. Slip op. at 20-36. As the court observed:

[T]he government in this case must prove beyond a reasonable doubt that the defendants knew the information was NDI [national defense information], i.e., that the information was closely held by the United States and that disclosure of this information might potentially harm the United States, and that the persons to whom the defendants communicated the information were not entitled under the classification regulations to receive the information. Further the government must prove beyond a reasonable doubt that the defendants communicated the information they had received from their government sources with "a bad purpose either to disobey or to disregard the law."

Slip op. at 32. (From the perspective of a criminal defense attorney, of course, this ruling makes the whole motion process worthwhile even though the defendants' motion was denied, since they have now locked the court into a pro-defendant view of the jury charges). I should note that the government's allegations, if proven, make it highly likely that these defendants knew that they were acting unlawfully - the court's discussion of the facts is replete with examples of the defendants saying things like "I'm not supposed to know this" or describing the information as "codeword protected intelligence." Slip op. at 3-7.

The court's discussion of the state of mind requirements, however, left open the distinct possibility of a prosecution of misguided idealists in the press or (in this case) of lobbyists/think tanks/advocacy groups, whatever their subjective motives, so long as they knew they were unlawfully leaking classified information and had reason to know that it was important to the national defense - but imposes a higher state of mind (scienter) requirement on oral disclosures:

As has been noted, the statute's "willfulness" requirement obligates the government to prove that the defendants knew that disclosing the NDI could threaten the nation's security, and that it was illegal, but it leaves open the possibility that defendants could be convicted for these acts despite some salutary motive. For example, if a
person transmitted classified documents relating to the national defense to a member of the media despite knowing that such an act was a violation of the statute, he could be convicted for "willfully" committing the prohibited acts even if he viewed the disclosure as an act of patriotism. By contrast, the "reason to believe" scienter requirement that accompanies disclosures of information, requires the government to demonstrate the likelihood of defendant's bad faith purpose to either harm the United States or to aid a foreign government.

Slip op. at 33-34 (emphasis in original).

Next - in a passage that must have alarmed the New York Times - the court rejected the claim that the statute failed to give fair notice that it could apply to persons outside the government. As the court noted, this argument is belied by the statute's plain language, as an entire subsection (793(e)) deals with disclosures by those not authorized to have the information in the first place. Slip op. at 37 & n. 38. The court was unmoved by the idea that "leaks" by outsiders can not be prosecuted:

[L]abeling an event a "leak" does not remove the event from the statute's scope. At best, the term "leak" is a euphemism used to imply or suggest to a careless reader that the transmission of the information was somehow authorized. Whether the "leaks" or transmissions of information in this case were authorized is likely to be a sharply controverted issue in this case and if the government does not carry its burden of showing that the transfers of information were unauthorized, the prosecution fails. But the analysis here proceeds, as it must, on the superseding indictment's allegations, including the allegation that all transmissions of NDI were unauthorized.

Id. at 38. (With my background as a securities lawyer, this is a familiar theme. The government has prosecuted outsiders, including lawyers and journalists, for unauthorized use of corporate inside information - so long as it shows certain connections back to an unauthorized disclosure from the company. Indeed, much of the court's analysis of what constitutes protected information and how you show that its disclosure was unauthorized has paralells in the federal securities laws).

The First Amendment

The defendants' next avenue of attack - one that surely would be invoked by reporters - was to claim a First Amendment right to make the disclosures in question. The court recognized that the Espionage Act does have free speech implications, as information about U.S. foreign policy implicates "the core of the First Amendment's guarantees." Slip op. at 40.

In the instant case, defendants are accused of the unauthorized possession of information relating to the national defense, which they then orally communicated to others, all within the context of seeking to influence United States foreign policy relating to the Middle East by participating in the public debate on this policy.

Id. at 42. Thus, "the mere invocation of 'national security' or 'government secrecy' does not foreclose a First Amendment inquiry." Id. at 41. Nor are the First Amendment interests absolute; instead, the court recognized its obligation to determine whether Congress had struck a permissible balance between the protection of national security and the right to free speech, in light of the type of information at issue:

But importantly, the defendants here are not accused merely of disclosing government secrets, they are accused of disclosing NDI, i.e., government secrets the disclosure of which could threaten the security of the nation. And, however vital an informed public may be, it is well established that disclosure of certain information may be restricted in service of the nation's security, for "[i]t is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (quotingAptheker v. Secretary of State, 378 U.S. 500, 509 (1964)). And, as the Supreme Court has repeatedly noted, one aspect of the government's paramount interest in protecting the nation's security is the government's "compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." Snepp, 444 U.S. at 509 n.3. Thus, the right to free speech and the value of an informed citizenry is not absolute and must yield to the government's legitimate efforts to ensure "the environment of physical security which a functioning democracy requires." Morison, 844 F.2d at 1082. This point is best expressed in the Supreme Court's pithy phrase that "while the Constitution protects against the invasion of individual rights, it is not a suicide pact." Aptheker, 378 U.S. at 509 (quotingKennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963)).

Slip op. at 46-47 (footnotes omitted).

In determining that the Espionage Act was narrowly tailored to serve this compelling interest, the court rejected the notion that only the original leakers could be prosecuted:

As defendants correctly argue, the analysis of the First Amendment interests implicated by secs. 793(d) and (e) depends on the relationship to the government of the person whose First Amendment rights are implicated. In this respect, there are two classes of people roughly correlating to those subject to prosecution under sec. 793(d) and those subject to prosecution under sec. 793(e). The first class consists of persons who have access to the information by virtue of their official position. These people are most often government employees or military personnel with access to classified information, or defense contractors with access to classified information, and are often bound by contractual agreements whereby they agree not to disclose classified information. As such, they are in a position of trust with the government. The second class of persons are those who have no employment or contractual relationship with the government, and therefore have not exploited a relationship of trust to obtain the national defense information they are charged with disclosing, but instead generally obtained the information from one who has violated such a trust.

There can be little doubt, as defendants readily concede, that the Constitution permits the government to prosecute the first class of persons for the disclosure of information relating to the national defense when that person knew that the information is the type which could be used to threaten the nation's security, and that person acted in bad faith, i.e., with reason to believe the disclosure could harm the United States or aid a foreign government.

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[D]efendants here contend that the First Amendment bars Congress from punishing those persons, like defendants, without a special relationship to the government for the disclosure of NDI. In essence, their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure. This position cannot be sustained. Although the question whether the government's interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

Slip op. at 48-49, 52-53 (emphasis added). Among other things, the court drew on the many opinions in the Pentagon Papers case, in which the Supreme Court concluded that then government may not prevent by injunction the publication of secrets, but several Justices suggested that the publication could nonetheless be grounds for prosecution after the fact.

The court did, however, conclude that despite the terms of the statute allowing prosecutions for disclosure that harms the U.S. or advantages a foreign nation, that advantage must accrue to our enemies - i.e., there must be actual risk of harm to the U.S. Id. at 55-63. This restriction may be of particular significance in the prosecution of the two AIPAC lobbyists.

Conclusion

Under the Rosen decision, the government's burden to prosecute those outside of government for leaking classified national security secrets is high, and onerous, and should deter the government from seeking such prosecutions lightly. But the court - properly, in my view - concluded that there is no absolute right of citizens, once in receipt of such secrets, to pass them along or publish them. If that makes newspapers and lobbyists alike more cautious in disclosing secrets that go to the core of our ability to protect the nation from its enemies - well, that's a good thing.

In a decision handed down today by the DC Circuit and authored by onetime Reagan Supreme Court nominee Douglas Ginsburg (and joined, FWIW, by Judges Janice Rogers Brown and Judith Rogers), the court in Murphy v. IRS concluded that taxation of an award of compensatory damages for emotional distress and loss of reputation is unconstitutional because such restitution, unlike compensation for lost wages (which replaces taxable income), is not "income" within the meaning of the Sixteenth Amendment and thus is beyond the federal government's enumerated power to tax. (H/T Bashman).

The Sixteenth Amendment, adopted in 1913 after 19th century Supreme Court decisions striking down the income tax, provides:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

The Murphy decision is somewhat limited in scope, given the broad definitions of "income" previously adopted by the Supreme Court in defining the scope of the Sixteenth Amendment:

When it first construed [the term "incomes" in the Sixteenth Amendment] in Eisner v. Macomber, 252 U.S. 189, 207 (1920), the Supreme Court held the taxing power extended to any "gain derived from capital, from labor, or from both combined." Later, after explaining that Eisner was not "meant to provide a touchstone to all future gross income questions," the Court added that under the [Tax Code] -- and, by implication, under the Sixteenth Amendment -- the Congress may "tax all gains" or "accessions to wealth." Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430-31 (1955).

Slip op. at 10. As the court notes, the exception to that rule is where gains constitute "a restoration of capital." Id. This decision is, to some extent, merely an application of the exception, although the court does spend a good deal of effort examining the 1913-era understanding of "income" and compensatory damages by examining contemporaneous legislation and court decisions. Slip op. at 18-23. Nonetheless, it is heartening to see a court take seriously the principle of enumerated powers with regard to federal legislation:

At the outset, we reject the Government's breathtakingly expansive claim of congressional power under the Sixteenth Amendment -- upon which it founds the more far-reaching arguments it advances here. The Sixteenth Amendment simply does not authorize the Congress to tax as "incomes" every sort of revenue a taxpayer may receive. As the Supreme Court noted long ago, the "Congress cannot make a thing income which is not so in fact." Burk-Waggoner Oil Ass'n v. Hopkins, 269 U.S. 110, 114 (1925). Indeed, because the "the power to tax involves the power to destroy," McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819), it would not be consistent with our constitutional government, and the sanctity of property in our system, merely to rely upon the legislature to decide what constitutes income.

Today, at the instigation of the ACLU, CAIR, Greenpeace, the National Association of Criminal Defense Lawyers and a number of individual plaintiffs (including, most dishearteningly, Christopher Hitchens), Judge Anna Diggs Taylor of the US District Court for the Eastern District of Michigan - a Jimmy Carter appointee - issued a permanent injunction halting the use of the NSA's Al Qaeda surveillance program that was disclosed to the public by the New York Times in December. Judge Taylor's opinion reads like a parody of bad judicial reasoning. The self-appointed legal solons of the Left will have to work long and hard to compose the straight face to dress up this opinion as anything but a travesty of the judicial process. In the meantime, Judge Taylor's decision unambiguously does two things: it reinforces the importance of appointing good conservative judges, and it demonstrates the damage already done to our security by the Times's unauthorized disclosure of the NSA program.

To refresh your recollection, the program the court refers to as "TSP" ("Terrorist Surveillance Program") intercepts and monitors - without a warrant or other judicial review - telephone "communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." Slip op. at 13. Note that even Judge Taylor has to admit to two things that critics of the program have usually glossed over: it doesn't apply to domestic (i.e., solely within the U.S.) communications, and it is narrowly tailored to capture communications of Al Qaeda and those affiliated with or supporting Al Qaeda - i.e., exactly the people that even the most die-hard opponents of the Bush Administration admit we are at war with. Or so you would think: Judge Taylor gives away her bias on p. 9 when she refers to "the War on Terror of this administration".

I explained back in December why I believe that the NSA program is easily within the president's powers under the Constitution, is not barred by any express Constitutional limits, and is at least arguably justified by the September 2001 Authorization to Use Military Force against Al Qaeda, on the theory that the AUMF implicitly repealed the statutory limitations of the Foreign Intelligence Surveillance Act ("FISA") within the limited context of the war against Al Qaeda. In a nutshell -- go read the whole thing for more elaboration -- the President has the traditional power to conduct surveillance of the enemy in wartime, and that power is not diminished when the enemy crosses our border or communicates across our border. If -- and in this case it is -- the surveillance is reasonable, and thus in step with the Fourth Amendment, and because it is the proper exercise of a war power implicit in the AUMF, the strictures of FISA do not apply. Others have argued that the surveillance is actually consistent with FISA; being no expert on FISA and lacking all the facts, I have not addressed that question and won't do so here. The Bush Administration has not sought to publicly advance that argument, though it is not clear whether this is at least partly because the Administration does not want to disclose any more of the details of this program than have already been splashed across the front page of the NY Times.

The Opinion

State Secrets

The first issue Judge Taylor addresses is the state secrets privilege, recently reaffirmed by a unanimous Supreme Court back in 2005 in Tenet v. Doe, 544 U.S. 1 (2005). The privilege -- requiring the dismissal of lawsuits where either the proof of the plaintiff's claim or the defendant's defense would require disclosure of state secrets -- was originally developed to limit the bringing of breach of contract claims by unpaid spies. The Court in Tenet rejected such a narrow view of the rule:

[The Ninth Circuit] reasoned first that Totten developed merely a contract rule, prohibiting breach-of-contract claims seeking to enforce the terms of espionage agreements but not barring claims based on due process or estoppel theories. In fact, Totten was not so limited: "[P]ublic policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential." Id., at 107 (emphasis added); see also ibid. ("The secrecy which such contracts impose precludes any action for their enforcement" (emphasis added)). No matter the clothing in which alleged spies dress their claims, Totten precludes judicial review in cases such as respondents' where success depends upon the existence of their secret espionage relationship with the Government.

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We adhere to Totten. The state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection we found necessary in enunciating the Totten rule. The possibility that a suit may proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable: "Even a small chance that some court will order disclosure of a source's identity could well impair intelligence gathering and cause sources to 'close up like a clam.'" CIA v. Sims, 471 U. S. 159, 175 (1985). Forcing the Government to litigate these claims would also make it vulnerable to "graymail," i.e., individual lawsuits brought to induce the CIA to settle a case (or prevent its filing) out of fear that any effort to litigate the action would reveal classified information that may undermine ongoing covert operations. And requiring the Government to invoke the privilege on a case-by-case basis risks the perception that it is either confirming or denying relationships with individual plaintiffs.

Defendants' assertion of the privilege without any request for answers to any discovery has prompted this court to first analyze this case under Totten/Tenet, since it appears that Defendants are arguing that this case should not be subject to judicial review. As discussed supra, the Totten/Tenet cases provide an absolute bar to any kind of judicial review. Tenet, 544 U.S. at 8. This rule should not be applied in the instant case, however, since the rule applies to actions where there is a secret espionage relationship between the Plaintiff and the Government. Id. at 7-8. It is undisputed that Plaintiffs' [sic] do not claim to be parties to a secret espionage relationship with Defendants. Accordingly, the court finds the Totten/Tenet rule is not applicable to the instant case.

Slip op. at 11. As Judge Taylor notes - and explaining why this case was brought in Michigan rather than in the DC Circuit, where it belongs - the DC Circuit in 1978 applied the state secrets doctrine to dismiss claims challenging warrantless surveillance by the NSA and other government agencies, because litigation would disclose the NSA's methods and the identities of those surveilled, among other things. Slip op. at 5-7. Indeed, Judge Taylor's discussion of the caselaw makes clear that the law in the Sixth Circuit, as well as the DC Circuit, overwhelmingly supported dismissal of the present lawsuit.

However, Judge Taylor is undeterred by such precedent. First, she notes that certain basic outlines of the program have been made public and confirmed by the Administration (gliding over who forced this issue into the public eye), and notes that the plaintiffs are asking for a permanent injunction solely on the basis of the facts publicly admitted -- utterly ignoring the possibility that more detailed discovery (if such a thing were not unduly intrusive of national security, which it obviously is) would bear on such things as the reasonableness of the government's need to conduct such surveillance. As we shall see below, once Judge Taylor gets past the state secrets issue, she repeatedly rejects the government's defenses precisely on the grounds that they are not supported by sufficient evidence. She simply assumes that, just because the government is unwilling to disclose additional facts, they must not exist.

Part of her justification for this kangaroo-court approach to evidence is the following:

It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.

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The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP. Further, Defendants have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have supported these arguments without revealing or relying on any classified information.

Slip op. at 14. Of course, the Bush Administration, having reached this conclusion based on all the facts, including those that are classified, will state for the public such justifications as it can advance based on the information already disclosed by the Times, without compromising more secrets. The idea that the Administration's public defense of its position under intense attack by the Times and others on the Left constitutes some sort of waiver of its position that the program's secret details should not be further protected -- or are not relevant to the program's legality -- is absurd.

Standing

Of course, to challenge a government program, you need evidence that you have actually been affected by it; in other words, you need standing. I don't have time or space here to catalogue all of Judge Taylor's misreadings of the standing cases (Leon Wolf does that here, but three points are worth making.

First, the plaintiffs' proof of standing is itself more than a little disturbing; second, the plaintiffs have not actually met their evidentiary burden:

[T]he court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants' public admissions regarding the TSP. Plaintiffs' declarations establish that their communications would be monitored under the TSP.

Slip op. at 13. Of course, the plaintiffs do not actually show that they were surveilled, but several of them did file affidavits with the court in which they admitted to consorting with people linked to Al Qaeda:

[I]n a Declaration, attorney Nancy Hollander stated that she frequently engages in international communications with individuals who have alleged connections with terrorist organizations. Attorney William Swor also provided a similar declaration. Journalist Tara McKelvey declared that she has international communications with sources who are suspected of helping the insurgents in Iraq.

Slip op. at 13 n. 7. This may be grounds for indicting or deporting these fine, upstanding citizens, but it's not evidence that they were actually surveilled. The court rejects the questions raised by the government on this point on the grounds that they are "unsubstantiated." Slip op. at 23. Well, of course they are unsubstantiated because the government doesn't want to reveal any more state secrets. But having assumed away the state secrets problem by saying she needs no more evidence, Judge Taylor just forgets about it whenever she demands more evidence from the government.

The third point about standing is this alarming passage:

All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.

Slip op. at 17-18 (emphasis addded). Actually, to be more precise, the New York Times' disclosure of TSP caused these Al Qaeda-affiliated individuals to clam up. Gone, in a single sentence, is any pretense that the Times' defenders may have that the disclosure of this program did not blow important secrets, and did not cause any change in terrorists' behavior.

Judge Taylor's Constitutional "Analysis"

This is the point at which I would, ordinarily, address Judge Taylor's reasons for coming to the opposite conclusion that I did - first and foremost, why she thinks that the program violates the Constitution - but her analysis is so flimsy that it is hard to even discuss. As I noted in my prior discussion, the touchstone of any Fourth Amendment analysis is reasonableness, not the presence of a warrant, and the courts have upheld this rule. This is the basis, for example, for many exceptions to the Fourth Amendment recognized by the Supreme Court, such as the exigency requirement. Yet Judge Taylor, without any citation at all, baldly asserts that the Fourth Amendment "requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens." Slip op. at 31. She then turns to discuss FISA, ignoring the fact that if a search is constitutionally valid, it does not become invalid simply because a statute says otherwise (it may violate the statute, but that's a separate issue). Then she concludes:

The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

Id. I guess "obviously" dispels the need to actually engage in any analysis. So much for judicial reasoning.

If anything, Judge Taylor's First Amendment analysis is even worse. She notes that the plaintiffs have shown that they were 'chilled' in expressing themselves by knowledge of the surveillance. The flimsiness of the proof on that point notwithstanding, she continues by noting that the government can justify such a chilling effect "upon showing of a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen." Slip op. at 32.

Does Judge Taylor then discuss the exigencies of the governmental interest involved, or compare the details of the program to some purportedly less restrictive alternative? Of course not, because that would require discussing the facts - and she has already said she could rule without those! So she instead cites some language in FISA and some language dealing with interests in suppressing criticism of the government, and concludes:

The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.

Slip op. at 33. Say what?

Then, there's the separation of powers and the statutory conflict issues, which are dealt with in similar fashion. For example, Judge Taylor notes that the Supreme Court rejected the exigency of President Truman's seizure of steel mills during a strike in the Korean War (a case having nothing to do with surveillance), and baldly asserts:

As long ago as the Youngstown case, the Truman administration argued that the cumbersome procedures required to obtain warrants made the process unworkable. The Youngstown court made short shift of that argument and, it appears, the present Defendants' need for speed and agility is equally weightless.

Slip op. at 42. Note the word "weightless" - as in, not proven by evidence. What evidence? The evidence the court said the government didn't need, of course!

Finally, the court grievously mischaracterizes the "inherent power" argument, which, as I discussed previously, goes only to the question of what the source of the government's power is:

The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.

We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.

Slip op. at 40.

Anyway, the permanent injunction has, at this writing, alrady been stayed pending appeal; this will certainly not be the last word on the matter. However, even a momentary lapse in our ability to keep constant watch on Al Qaeda would have been enough to remind us of the dangers posed to us in the form of judges appointed by a Democrat a quarter century ago, and of the damage done to national security by leaking this essential terror-fighting tool on the front page of a leading newspaper. Shame on the Times, shame on the plaintiffs, shame on Jimmy Carter, and most of all shame on Judge Taylor.

Federal trademark law dictates that the government will not register any trademark that disparages any person or group, and in 1999, the U.S. Patent and Trademark Office ruled that the Redskins trademark was disparaging. The NFL appealed the decision to the U.S. District Court, which in 2003 reversed the PTO, ruling that the name wasn't disparaging. Further, said the trial court, laches (essentially, a statute of limitations) barred the Native Americans' claim because the Redskins had registered their trademark way back in 1967. The Native Americans then appealed to the D.C. Circuit, which issued an opinion last year declining to rule on disparagement but asking the trial court to reconsider the laches issue.

Actually, laches is a specific type of limitations - rather than a period of years, a laches defense is based on unreasonable delay in bringing a claim. The new plaintiffs apparently hope to avoid the laches defense because they are young, but I don't see how that helps them, since the disparagement is of a group of people and the Redskins have reasonably relied on the mark for four decades.

That said, I do think that "Redskins," far more than other Native American team names, is in fact derogatory, and even if legal action is inappropriate, it would behoove the team to change its name. I've long argued that they should change the team name to "Pigskins" - it's got an obvious football connection, it connects with the team's "Hogs" tradition, they would still be the "Skins," and even the theme song could become "Hail to the Pigskins" without much trouble.

The United States Court of Appeals for the Second Circuit has held, by a 2-1 vote, that the New York Times can not hide behind the First Amendment in resisting a grand jury subpoena aimed at the Times' 2001 disclosure of upcoming searches and asset freezes to the targets of those searches, two foundations that were raising money for terrorists. The court also held that even if there is a common law reporters' privilege, it is overcome by the "compelling governmental interest" in not alerting targets of legitimate law enforcement investigations to impending searches. The decision is a victory for Patrick Fitzgerald and the Bush DOJ over a newspaper that can't seem to resist the temptation to use leaks to hobble efforts to battle terrorism.

A federal grand jury in Chicago is investigating how two Times reporters obtained information about the government's imminent plans to freeze the assets and/or search the offices of Holy Land Foundation ("HLF") and Global Relief Foundation ("GRF") on December 4 and 14, 2001, respectively, and why the reporters conveyed that information to HLF and GRF by seeking comment from them ahead of the search. Both entities were suspected of raising funds for terrorist activities. The government alleges that, "[i]n both cases, the investigations -- as well as the safety of FBI agents participating in the actions -- were compromised when representatives of HLF and GRF were contacted prior to the searches by New York Times reporters Philip Shenon and Judith Miller, respectively, who advised of imminent adverse action by the government." The government maintains that none of its agents were authorized to disclose information regarding plans to block assets or to search the premises of HLF or GRF prior to the execution of those actions. The unauthorized disclosures of such impending law enforcement actions by a government agent can constitute a violation of federal criminal law, e.g., 18 U.S.C. § 793(d) (prohibiting communication of national defense information to persons not entitled to receive it), including the felony of obstruction of justice, 18 U.S.C. § 20 1503(a).

The Times has refused to cooperate in the investigation of Miller, Shenon and their sources. The court concluded that no privilege exists to bar investigation of their conduct:

The grand jury investigation here is focused on: (i) the unauthorized disclosures of imminent plans of federal law enforcement to seize assets and/or execute searches of two organizations under investigation for funding terrorists, followed by (ii) communications to these organizations that had the effect of alerting them to those plans, perhaps endangering federal agents and reducing the efficacy of the actions.

The grand jury thus has serious law enforcement concerns as the goal of its investigation. The government has a compelling interest in maintaining the secrecy of imminent asset freezes or searches lest the targets be informed and spirit away those assets or incriminating evidence. At stake in the present investigation, therefore, is not only the important principle of secrecy regarding imminent law enforcement actions but also a set of facts -- informing the targets of those impending actions -- that may constitute a serious obstruction of justice.

The court stressed the role the reporters played in this fiasco:

[T]he reporters were not passive collectors of information whose evidence is a convenient means for the government to identify an official prone to indiscretion. The communications to the two foundations were made by the reporters themselves and may have altered the results of the asset freezes and searches; that is to say, the reporters' actions are central to (and probably caused) the grand jury's investigation.

As a result, there is no basis for resisting the investigation - although the court does seem to hold out hope that the Times might be able to resist other investigations down the road:

We see no danger to a free press in so holding. Learning of imminent law enforcement asset freezes/searches and informing targets of them is not an activity essential, or even common, to journalism. Where such reporting involves the uncovering of government corruption or misconduct in the use of investigative powers, courts can easily find appropriate means of protecting the journalists involved and their sources.

I'm late to the party here, but I do try to make it a practice to actually read books that are sent to me before reviewing them, and this one actually only hits stores today. So let's talk about Jeremy Blachman's new novel Anonymous Lawyer, based on the (fiction) blog of the same name.

The premise is a look at the life (mostly the work life, as that's all there is) of a lawyer who is the hiring partner at a big LA firm but aches to be Chairman of the firm. The structure of the book is blog form - Anonymous Lawyer posts about his work on his blog, while exchanging emails with his readers and his niece, a Yale Law student. Eventually, as you would expect, the grim picture of his firm that emerges from his writing makes his blog a problem despite its putative anonymity. Consistent with some of the reactions Blachman (then a Harvard Law student who had only summered at a big firm) got, but undoubtedly exaggerated for dramatic effect, Anonymous Lawyer also receives a stream of emails from people at other firms who think he works there.

Now, I should preface my remarks on the "realism" of this book by saying that I probably know as little as it is possible to know about big-firm life after working for a (now very) big firm for ten years; I'm generally the kind of person who is the last to know everything at my firm, being engrossed in my cases, my efforts to stay ahead of the latest developments in the law, and my life outside the job (blog included). And of course, not all firms are alike, notwithstanding the general tendency of large for-profit organizations to have certain basic similarities, about which you need to keep a sense of humor. Still, you don't have to know that much about the big firms to recognize that, while Blachman has some of the mechanics of law firm life down, several of the incidents in the book have a "all the worst things at all the worst firms in one place at one time" feel to them, and the rest are just pure fantasy, and one filtered through the lens of someone who has never actually worked at a firm except as a summer associate.

On the other hand, one thing Blachman has caught on to, from his law school experience, is the same central insight that made Scott Turow's One-L work: that many of the pressures faced by big-firm lawyers, just as with law students, come from the internal, self-imposed desire to keep measuring yourself against other people, to the detriment of having perspective about your life and career. The people who are most miserable in law school and in the practice of law are often those who fall into this trap. The best advice you can give law students and lawyers alike is to make sure to have contact with people outside the law, and interests outside the law, to maintain that perspective. Of course, the characters in Blachman's novel who lack this perspective invariably face crises arising from that flaw.

As long as you're OK with the fact that the book is more of a broad farce than a deft satire, the first half of the book (which I suspect is truer to Blachman's blog) is very funny indeed, as Anonymous Lawyer's gleefully over-the-top misanthropy provides a steady stream of dark humor (such as when he decides to send a summer associate to Belize for no purpose, then calls and tells him that the - nonexistent - case he sent him there for settled). At the halfway point, however, one of the lawyers in the book has a sudden health crisis (I won't give away more), and the book turns away from the episodic humor and focuses on a more conventional effort at a plot, which unfortunately has a surplus of predictable plot twists as well as incidents that push the reader's suspension of disbelief beyond the breaking point. The second half of the book took me a lot longer to read, and while there were still a few grim amusements, it wasn't that much fun.

Anyway, I wish Blachman luck; he's obviously got a way with words and a dark sense of humor, and depending on your taste for that kind of humor, you may well enjoy "Anonymous Lawyer." For more, you can visit Blachman's parody site, "Anonymous Law Firm" here (some parts are actually closer to a dead-on parody of law firm websites than the book is). It's also complete with a bar exam card/taunt feature.

So, Joe Wilson and Valerie Plame have filed suit against Dick Cheney, Karl Rove, and Scooter Libby, among others, over Bob Novak's disclosure that Plame worked for the CIA. I've read the complaint, which is posted over at NRO; it alleges various theories of denial of civil rights, essentially on a theory of retaliation against Plame, as a government employee, for Wilson's exercise of his free speech rights. Thoughts:

1. There's a good deal of predictable partisan posturing here, and big chunks copied from the Libby indictment and press accounts, but Plame and Wilson cagily allege as few additional facts as they can. Basically, a blogger who had never spoken to Plame or Wilson could have written most of this. In particular, there's no detail on Plame's career at the CIA other than that she was "an operations officer in the Directorate of Operations" and "her employment status was classified," neither of which necessarily implies any covert activities.

2. Fitzgerald's press conference is quoted as providing a basis for a civil lawsuit against people who were not even indicted, giving a good example of why prosecutors should not give press conferences about topics outside the four corners of their charges.

3. There's a cause of action for violation of a "Fifth Amendment right to privacy," and while I'm not familiar with the caselaw on constitutional torts, that sounds like a stretch. The complaint does not reference the Vanity Fair photo shoot or what happened to the profits from the book deal Joe Wilson got out of all this.

4. The complaint provides nothing to connect Cheney or Libby to the actual press disclosure of Plame's identity.

5. It appears from the "JDB" docket number on the NRO version of the Plame complaint that the case was initially assigned to Judge John D. Bates, a George W. Bush appointee. However, it may be that Judge Bates would recuse himself from a lawsuit naming Cheney and Rove in their personal capacities, and it is possible that the case could be sent to Judge Walton, who is handling the Libby trial.

6. The initial issue in the case, before the legal sufficiency of the allegations and before any discovery is taken, is whether some or all defendants (or other interested parties) will ask for a stay or dismissal of the litigation. There are three bases for doing so. One, the liberal quotation from the indictment underscores the fact that this suit overlaps substantially with the subject of a pending criminal trial. Fitzgerald may well intervene to ask for a stay of all proceedings - he won't want his trial witnesses deposed in a civil suit. Second, Dick Cheney in particular has duties as the Vice President, including dealing with an unstable and dangerous world potentially lurching into another war on top of the two-front war we're already fighting in Iraq and Afghanistan. Under Clinton v Jones, there's no absolute bar to such a suit but the district court can balance the intrusion of the litigation, among other factors - here, with the case focusing on Administration foreign policy, the level of intrusion could be significant. And third, there's the state secrets privilege, described extensively in this opinion (later upheld by the DC Circuit) dismissing claims by Sibel Edmonds, who charged retaliation by the FBI relating to her work as a translator of national security documents. Basically, if a civil suit would involve discovery of national security information (such as, for example, details of any covert activities by Plame, to say nothing of discovery directed at Cheney), the court can dismiss it in the greater national interest. The Bush Administration has been loath to press the envelope on the kinds of legal privileges asserted by the Clintons to deflect personal scandals (as opposed to expanding the rights of the Executive Branch more broadly) but the desire to get this lawsuit out of the way may compel them to seek a stay or dismissal on this basis.

The DC Circuit has removed US District Judge Royce Lamberth from the longstanding (to put it mildly) litigation over the Interior Department's management of Indian trust funds, after reversing one of his orders for the eighth time. (Via Bashman). Even if you've followed this dispute as it has grown progressively nastier since the mid-1990s (when it was already quite nasty indeed), you have to read the opinion to believe it - while the DC Circuit acknowledged that the Interior Department's conduct in the litigation and the underlying dispute has been deplorable, it agreed that a judge who viewed the Department and its counsel at Justice as irredeemably "villainous racists" (in the government's phrase) "could contribute to a reasonable observer's belief that Interior stands
no chance of prevailing whatever the merits of its position."

Judge Thomas Hogan of the US District Court of DC upholds the search of Democratic Congressman William Jefferson's office in the Rayburn building, over the objections of Jefferson and - among others - Speaker Hastert. The opinion is here. Key quotes:

The purpose of the Speech or Debate Clause is not to promote or maintain secrecy in legislative activity.

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Congress' capacity to function effectively is not threatened by permitting congressional offices to be searched pursuant to validly issued search warrants, which are only available in relation to criminal investigations, are subject to the rigors of the Fourth Amendment, and require prior approval by the neutral third branch of government.

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Finally, the Court finds no support for the proposition that a Member of Congress must be given advance notice of a search, with an opportunity to screen out and remove materials the Member believes to be privileged. Indeed, the Court is aware of no case in which such a procedure is mandated by any other recognized privilege.

Contrary to the arguments of amicus, legislators do not have the right to determine the scope of their own privilege under the Speech or Debate Clause. The Founders expressly rejected a constitutional proposal that would have permitted Members collectively to be the exclusive judges of their own privileges. 2 Records of the Federal Convention of 1787 503 (Max Ferrand ed., 1966). In opposition to the proposal, Madison explained that it would be preferable "to make provision for ascertaining by law" the extent of privileges "previously & duly established" rather than to "give a discretion to each House as to the extent of its own privileges."

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The power to determine the scope of one's own privilege is not available to any other person, including members of the co-equal branches of government: federal judges, . . or the President of the United States, . . .

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If there is any threat to the separation of powers here, it is not from the execution of a search warrant by one co-equal branch of government upon another, after the independent approval of the third separate, and co-equal branch. Rather, the principle of the separation of powers is threatened by the position that the Legislative Branch enjoys the unilateral and unreviewable power to invoke an absolute privilege, thus making it immune from the ordinary criminal process of a validly issued search warrant. This theory would allow Members of Congress to frustrate investigations into non-legislative criminal activities for which the Speech or Debate Clause clearly provides no protection from prosecution.

We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.

I discussed the lower court opinion at length here. The NY Court of Appeals identified two rational bases for distinguishing between same- and opposite-sex couples, and its reasoning (which is similar to my arguments in the post linked above) is worth quoting at length:

First, the Legislature could rationally decide that, for the welfare of children, it is more important to promote stability, and to avoid instability, in opposite-sex than in same-sex relationships. Heterosexual intercourse has a natural tendency to lead to the birth of children; homosexual intercourse
does not. Despite the advances of science, it remains true that the vast majority of children are born as a result of a sexual relationship between a man and a woman, and the Legislature could find that this will continue to be true.

The Legislature could also find that such relationships are all too often casual or temporary. It could find that an important function of marriage is to create more stability and permanence in the relationships that cause children to be born. It thus could choose to offer an inducement -- in the form of marriage and its attendant benefits -- to opposite-sex couples who make a solemn, long-term commitment to each other.

The Legislature could find that this rationale for marriage does not apply with comparable force to same-sex couples. These couples can become parents by adoption, or by artificial insemination or other technological marvels, but they do not become parents as a result of accident or impulse. The Legislature could find that unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes than is the case with same-sex couples, and thus that promoting stability in oppositesex relationships will help children more. This is one reason why the Legislature could rationally offer the benefits of marriage to opposite-sex couples only.

There is a second reason: The Legislature could rationally believe that it is better, other things being equal, for children to grow up with both a mother and a father. Intuition and experience suggest that a child benefits from having before his or her eyes, every day, living models of what both a man and a woman are like. It is obvious that there are exceptions to this general rule -- some children who never know their fathers, or their mothers, do far better than some who grow up with parents of both sexes -- but the Legislature could find that the general rule will usually hold.

Plaintiffs, and amici supporting them, argue that the proposition asserted is simply untrue: that a home with two parents of different sexes has no advantage, from the point of view of raising children, over a home with two parents of the same sex. Perhaps they are right, but the Legislature could rationally think otherwise.

And so, even here in liberal New York, the legislature will decide a contentious social issue (as the court stressed the legislature may). As it should be.

SECOND UPDATE: Howard Dean calls the NY court's reasons - which merely allowed for the possibility that there could be something unique, special or valuable in traditional families - "outdated and bigoted notions about families". Tell me again how that "50-state strategy" is going, Howard? If the ignorant, knuckle-dragging bigots in New York aren't enlightened enough for the Democratic Party, well, that's a pretty small tent.

I don't blog much about business-scandal stories like Enron, not least because of the potential fof conflicts with work, but I would offer a few reflections following the death of Ken Lay.

First, I always wondered - if Lay had not been a major financial supporter of George W. Bush, would Enron have been a story for the Wall Street Journal and the financial pages, rather than front page news? Quite possibly. There have been many sensational business scandals that never really got more than passing attention from the non-financial press. Certainly, had it not been for the desperation to tie Lay to Bush, you would not have seen people like Paul Krugman arguing that Enron was a bigger story than September 11.

Second, would Lay have been indicted if he hadn't been so politically prominent? Maybe not. The public outcry had Lay not been indicted would have been fierce, precisely because of his association with Bush - but absent his unique prominence resulting from his political ties, the public would much more likely have been satisfied with the indictment of Andrew Fastow (the CFO who was the real locus of misconduct at Enron) and the hands-on CEO Jeff Skilling, and less concerned with nailing a genial but apparently detached Chairman of the Board.

I can't really criticize the jury for convicting Lay - they heard a whole lot more evidence than I ever did, and maybe the devil in the details made Lay's innocence implausible. But everything I saw about the case suggested a front man who was just out of touch with the details of Fastow's schemes and the fundamental rot in so many parts of the company's business. (Notably, some press accounts have indicated that even when Lay started selling off his stock to meet margin calls, he went out of his way to try to hold on to as big an Enron position as he could manage, at the expense of selling other investments - evidence of a guy who deludedly believed in his own company to the bitter end). That doesn't mean he should ever have held a position of any responsibility, but it also doesn't mean he was a crook so much as a fool.

If that's what really happened - if Lay simply failed to understand or examine the financial house of cards that Enron had become - then he didn't deserve to be branded a criminal - but then, he didn't deserve the wealth and influence that came with being the Chairman of the Board of a massively-capitalized public company, either, so there's a certain rough justice in how Lay's negligence came crashing down on him in ways that I suspect he never imagined were possible. Fortune's Wheel, and all. Which is a tragedy of sorts, but just one of thousands of tragedies in the Enron saga, most of them involving people who had a lot fewer chances to avoid their fate than Ken Lay did.

I don't generally mix work and the blog, but for those of you who are interested in the federal securities laws, I have an article out in the Delaware Journal of Corporate Law on Rule 10b-5(a) & (c) liability. You can download it here off SSRN.

I was puzzled when I first read this LA Times article, which discussed the electoral defeat of Judge Dzintra Janavs, an apparently well-regarded Los Angeles judge, by Lynn Diane Olson, who runs a bagel store and has barely practiced law. (Via Bashman). What was so obviously odd was the LAT's insistence, really without any scrap of evidence, that Janavs' defeat in ethnically polyglot LA was due to bigotry against her Latvian name. Only much later in the article does one get the real story:

Olson and her husband, Michael Keegan, a Hermosa Beach councilman, said they did not target Janavs because of her name, but rather because she was Republican.

"I targeted Janavs because of her political affiliation, time on the bench and what I hear about her from people in the legal community," Olson said, referring to Janavs' reputation for courtroom gruffness.

Thousands of campaign mailers funded by Olson, as well as about 50,000 e-mails directed at registered Democrats, emphasized the candidate's endorsement by the Los Angeles County Democratic Party.

The Supreme Court held 5-4 today in Hudson v. Michigan - with the five being Justices Scalia (who wrote the opinion), Thomas, Kennedy, Roberts and Alito - that when police officers enter a house without knocking and announcing their presence, in violation of the Fourth Amendment, the remedy for that violation is not exclusion of the evidence seized in the following search, but is limited to discipline or legal action against the offending officers. While the Court recognized the important interests served by the knock-and-announce rule, including preventing unnecessary gunplay initiated by surprised targets of a search, it concluded that the interests served by the exclusionary rule were too attenuated from the manner of entry to a dwelling to be searched, especially given that the manner of entry was not even the cause of obtaining the evidence:

[E]xclusion may not be premised on the mere fact that a constitutional violation was a "but-for" cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression. In this case, of course, the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence. Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house.

WSJ Law Blog has the scoop and a link to the indictment of the prominent securities class-action plaintiffs' firm and two of its name partners, David Bershad and Steven Schulman, for making illegal kickback payments to class representatives. Bloomberg has more, such as the detail that

The firm obtained the money in a manner to make the payments difficult to trace, including from casinos, prosecutors said in the indictment. The money was kept in a safe located in a "credenza in Bershad's office at Milberg Weiss, to which access was strictly limited."

UPDATE: Yes, this officially makes it schadenfreude day here at Baseballcrank.com. What, you'd rather talk about Jose Lima?

Now, I'm not an expert on the False Claims Act's source-of-information provisions or their interaction with the Freedom of Information Act - the legal issue presented to the Ninth Circuit - and I don't know whether this particular research project was or wasn't a meritorious use of public health funds. So, I'm not going to pass judgment on today's decison itself. But I do know that allowing animal rights zealots an opening to use private litigation to harrass medical researchers is a horrifying development. You will note, if you review the allegations on pages 6-7 of the slip opinion, that there are no allegations of the kind of things the False Claims Act is intended to protect against, i.e., personal enrichment, bill padding, and/or cost overruns by government contractors. Instead, there are a series of charges mainly relating to the medical merits of the research - a subject that will often be difficult for a judge without medical expertise to resolve on a motion to dismiss (where you assume the truth of the plaintiff's allegations) or even on summary judgment (where the defendant only wins if it can show that there are no material factual disputes). Result: protracted and expensive litigation whenever anti-animal-research fanatics can gin up a factual dispute and hire an expert to bicker over anything said in a research application, with the attendant chilling effect on life-saving research. Indeed, from the docket numbers on the caption it appears that this particular case has already dragged on for five years just on the dispute over the legal merits.

The government officials charged with approving medical research can and should be the sole judges of the scientific merits of such research. Allowing opponents of such research to attack projects that have already been approved through the vehicle of the False Claims Act is a threat to public health.

*Count me out of any complaints about there being a Flight 93 movie. I'm sick of being told how we can and can't commemorate September 11. In World War II they didn't flinch from making movies about the war that was on - go watch a movie like Mrs. Miniver, which won Best Picture in 1942 and took on the blitz while the bombs were still falling in England. The Flight 93 story has everything: real villains, real heroes, real tragedy, and the reality of why we fight and what the difference is between them and us. We need to have this movie.

*Speaking of which: I asked around my office and nobody wants to bet against the Supreme Court taking this case. Let's see: Ninth Circuit? Check. War on Terror significance? Check. Campaign finance/First Amendment angle? Check. Dissent by heterodox group of judges including Kozinski and Reinhardt? Check. (UPDATE: More on the same).

The first is trade. The Bush administration's committment to free trade has been downright inspiring. . . .

The second is education. . . . for the first time we are forcing educators to ask basic questions like "Can all our children read?" and we have stopped letting them segregate minorities into special education tracks that don't count for evaluation purposes . . .

The third is foreign aid. . . . the Bush administration made countries comply with the conditions before they got any cash.

As usual, McArdle isn't hesitant to criticize Bush, but she makes a good case that he's been right on all three of these counts. Read the whole thing.

*Via RCP Blog, a profile of Caitlin Flanagan, who writes on what is, by far and away, the single most divisive topic you can raise in American society: the tradeoffs of mothers of small children working outside the home vs. staying home with the kids.

*Another battle over a Founding Father's legacy, in this case Hamilton. My general view of the Founding Fathers is this: their virtues - foresight, wisdom, physical and moral courage, restraint in the exercise of power, leadership, stirring rhetoric, keen understanding of human nature - grow all the more impressive with time, and make all generations to come after them look small by contrast.
But their vices are another matter. Look carefully at any portrait of the Foudning Fathers and you will see among one or another of them envy, racism, extremes of ideology, partisanship, factionalism and incivility, libel, lust and licentiousness, venality, pride and ego, etc. While their virtues were all too rare, their vices were all too common and familiar (a fact that no doubt informed their generally dim view of human nature).

Interestingly, Judge David Sentelle, who was relentlessly demonized by Democrats throughout the 1990s for his role in appointing Ken Starr, disssented, noting among other things that under the majority's reasoning, Rep. Boehner could also have sued the Times.

So, if you are keeping score at home, that would be one House Democrat to zero current Congressional or White House Republicans who have been found by a court of law to have participated in illegal domestic surveillance of political opponents.

We depend, in this country, on freedom of speech and a free press, and the courts have been properly protective of the media, maybe at times too protective. Since New York Times v. Sullivan, the media in particular has been shielded from liability for merely negligent publication of falsehoods. Since the Pentagon Papers, it has been clear that the government can not prevent the publication of even the most sensitive information in wartime, however unlawfully obtained, though in appropriate cases there can still be legal consequences after the fact. And by law, under McCain-Feingold, the press has been granted special rights to speak about political candidates at election time that are denied to ordinary citizens. Only the development of the internet and the blogosphere and the demise of the "Fairness Doctrine" have chipped away at the monopoly power these freedoms have granted to the mainstream media, or "MSM".

While the freedom to speak may be - and should be - nearly absolute, however, developments in recent years have dealt one legal blow after another to the MSM's claim to special, privileged right to gathering news that the rest of us don't employ. To put it bluntly, the media thinks it is like the legal profession, which can use subpoenas to drag information out of the unwilling and use legal privileges to shield the contents of its communications. The recent White House press corps snit over Dick Cheney notifying the local authorities and the Corpus Christi press about his hunting accident, without giving a full and immediate confession to the White House press corps, is a sample of this attitude. When reporters go to court, however, they often discover that judges know the difference between the law and the media. Thus, Judith Miller jailed for not disclosing information about sources to a criminal investigation, among other setbacks in the courts regarding protection of sources.

Now, the lastest setback, which came yesterday in the Fourth Circuit's ruling in The Baltimore Sun Co. v. Ehrlich, No. 05-1297 (4th Cir. Feb. 15, 2006). (Via Bashman). At issue in the Sun's lawsuit against Maryland's (Republican, naturally) Governor Robert Ehrlich was whether Ehrlich was permitted to refuse to talk, and order his staff to refuse to talk, to two specific Sun reporters (one of them an opinion columnist) in response to what the Governor felt was biased and unfair coverage. Specifically, Ehrlich's press office issued the following order:

Effective immediately, no one in the Executive Department or Agencies is to speak with [Baltimore Sun reporter] David Nitkin or [Baltimore Sun columnist] Michael Olesker until further notice. Do not return calls or comply with any requests. The Governor's Press Office feels that currently both are failing to objectively report on any issue dealing with the Ehrlich-Steele Administration. Please relay this information to your respective department heads.

Slip op. at 3 (emphasis in original). The ban included barring the two from select press briefings, but they continued to have access to open press conferences, press releases and state FOIA requests, and other Sun reporters did not suffer the same fate. Id. at 4-5. The Sun sued, claiming unconstitutional retaliation under the First Amendment and 42 U.S.C. 1983 - a claim that, at bottom, rests on the theory that the Sun has a constitutional right to have the Governor and his staff compelled to talk to them. After all, if a public official can't choose when and whether not to speak to particular reporters, he can't really choose at all.

The Fourth Circuit recognized that executive officials not only have freedom not to speak, but have the authority to control their own staff, and its decision reflected the fact that media competition for access is a routine feature of reporting on the government:

It is common knowledge - and the parties so concede - that reporting is highly competitive, and reporters cultivate access - sometimes exclusive access - to sources, including government officials.

Public officials routinely select among reporters when granting interviews or providing access to nonpublic information. They evaluate reporters and choose to communicate with those who they believe will deliver their desired messages to the public. By giving one reporter or a small group of reporters information or access, the official simultaneously makes other reporters, who do not receive discretionary access, worse off. These other reporters are sometimes denied access because an official believes them to be unobjective.

+++

[T]he challenged government response is a pervasive feature of journalism and of journalists' interaction with government. Having access to relatively less information than other reporters on account of one's reporting is so commonplace that to allow The Sun to proceed on its retaliation claim addressing that condition would "plant the seed of a constitutional case" in "virtually every" interchange between public official and press. See Connick v. Myers, 461 U.S. 138, 149 (1983). Accordingly, we conclude that, in the circumstances of this case, no actionable retaliation claim arises when a government official denies a reporter access to discretionarily afforded information or refuses to answer questions.

Id. at 10-12. Instead, the scope of a reporter's claims are limited to more direct forms of coercion implicating the unique powers and public megaphone of government:

When the challenged government action is government speech, there is no retaliation liability - even if the plaintiff can demonstrate a substantial adverse impact - unless the government speech concerns "private information about an individual" or unless it was "threatening, coercive, or intimidating so as to intimate that punishment, sanction, or adverse regulatory action will imminently follow."

Id. at 9 (citation omitted). The rule could not be otherwise. We all have freedom to speak and petition for redress of grievances, but not everyone in a land of 300 million souls has the right to an unlimited claim on the time and attention of high government officials to answer questions. Even leaving aside the fact that - as the Fourth Circuit recognized - it can be difficult if not impossible to draw the line between impermissible retaliation and ordinary discretion and favoritism among working reporters, a rule that allowed the use of litigation to compel government to cooperate with particular reporters would inevitably require some limits on who could invoke that process. And have we any doubt that the entrenched MSM would demand a rule giving it preferential status and access compared to the average citizen or blogger?

The media has a right to speak, in some ways greater than the rest of us. But its right to gather news is no greater than the rights of the average citizen in a democracy. As it should be.

Patterico (here and here) discusses a vexing issue: segregation of inmates by race in prison. Obviously, dividing people up by race has to be the absolute last resort in any situation. As a result, I'd like to believe that this is unnecessary and should be stopped, but as Patterico points out, when you are talking about how to safely house a population of violent convicted criminals, many of them virulently racist (at least, enough of them to cause serious trouble) and belonging to race-specific gangs, you're already running pretty low on palatable options, and at some point the question becomes how many people you're willing to see get stuck with a shiv to preserve your principles.

As a general rule, it's easier for the peace of mind, and the principles, of civilized people not to think too much about what goes on in prison, and like most people I prefer not to think much about it. But as a consequence, I'd have a hard time criticizing this practice without having walked in the shoes of the people who have to keep order.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Note that unlike the privelege from arrest, the Speech and Debate clause is absolute, and contains no exception even for treason. Now, Congressmen and Senators have tried to stretch this to cover prosecutions of all sorts, with decidedly mixed success. Not being an expert on the subject, I'm not sure whether there would be a colorable defense under the Speech and Debate clause for statements made (without the Senator's public identification) to a newspaper, purportedly in the public interest, regarding information obtained in the course of the Senator's duties. You would think not, given the text of the clause, but stranger things have happened in the process of putting a judicial gloss on constitutional provisions.

Whether noted in tonight's State of the Union or not, today marks a real changing of the guard, with Justice Alito now joining Chief Justice Roberts to complete the replacement of Chief Justice Rehnquist and Justice O'Connor, and with Fed Chairman Greenspan ending his term today and giving way to the new chairman, Bernanke. The influence of Rehnquist, Greenspan and O'Connor stretches over more than three decades.

Ted Kennedy, Kos diarist. Had to happen eventually. Check out the title and see if you can spot the word that appears nowhere in this diary:

Thank You for Helping To Stop Alito

Now, I know we all tend to be a bit colloquial when writing on the web, but this is a US Senator writing - or, more likely, dictating or having written by a staffer - about a man who's been on the federal bench for 15 years. I'm put in mind of this exchange:

Col. Jessep: I'd appreciate it if he would address me as "Colonel" or "Sir"... I believe I've earned it.

Judge Randolph: Counsel will refer to the witness as "Colonel" or "Sir."

Of course, one of the little ironies: had President Bush gotten John Roberts confirmed as an Associate Justice as originally planned before Chief Justice Rehnquist died, O'Connor would be gone and the Court would be split 4-4. But had the Chief job come open now, when Democrats are frothing over the whole NSA-wiretaps issue, there would have been an awful lot more questions about the fact that the Chief has sole responsibility for appointing judges to the FISA court.

A group of Episcopalians wants to make Thurgood Marshall a saint. Via Bashman. Now, Marshall was a fine litigator who did a lot of good in his years as a practicing lawyer, and for the most part I wouldn't hold against him, in this particular context, the fact that he was a poor judge, as he was in most cases a well-intentioned one. But I do wonder about sainthood for a man who joined Roe v. Wade and, so far as I can tell, never repented of it.

Stuart Buck thinks the Ayotte decision will actually turn out to be hugely important, especially in future abortion cases, because of its conclusion that federal courts have inherent power to alter or narrow unconstitutional state statutes rather than strike them down wholesale. I'm not sure I'm entirely comfortable with this outcome - which would seem to encourage more rather than less intrusion by federal judges into the state legislative process - but it would be ironic, after all the hue and cry about the precarious balance of the court on abortion issues, if a major blow wound up being struck in favor of abortion restrictions by a unanimous opinion written by a basically lame-duck Justice O'Connor. Read Stuart's whole analysis to see where he goes with this.

If you missed it, the Supreme Court - just months after holding that the Controlled Substances Act reaches far enough to cover intrastate marijuana growth for medical purposes - has held that the same statute doesn't reach far enough to authorize regulations prohibiting the use of controlled substances by doctors in physician-assisted suicide. The Court's opinion, by Justice Kennedy, is here; Justice Scalia's comprehensive dissent, joined by Chief Justice Roberts and Justice Thomas, is here, and Justice Thomas' additional dissent (writing for himself and complaining specifically about the inconsistency with Raich, the medical marijuana decision) is here.

The case is more limited than the usual hot-button social-issue case, since the Court was only asked to decide how far Congress intended the statute to go and not what the Constitution says on the matter. I haven't waded through all the conflicting arguments about the statutory issues in sufficient detail to have a firm grip on who has the better argument here; I'm inclined to side with Scalia, but that's not really an educated opinion and much turns on the abstruse issues of administrative law standards of deference. Justice Thomas, though, does have a rather compelling point that if the statute's breadth is as sweeping as the Court claimed in Raich, it's hard to see why it wouldn't also cover the proscriptions here. In any event, charges of hypocrisy against the dissenters seem to misunderstand the narrowness of the issue the Court was asked to resolve.

My gut-level policy thoughts on the issue:

1. Physician-assisted suicide is a Bad Thing and shouldn't be encouraged. I'm not an absolutist on end-of-life issues, for a variety of reasons - while there are common themes with the abortion issue, there are also a welter of complications on questions of heroic medical care, individual autonomy, and the like - and I think the government can best manage those complications by giving broad range to different people's different moral choices without a lot of interference. Nonetheless, inserting doctors - with their conflicting financial incentives and natural God complexes - into the business of ending the lives of people who aren't imminently about to die is just a bad idea.

2. That being said, the real issue with assisted suicide isn't the drugs, it's the doctors, and licensing doctors and resolving contentious issues about how far the state can involve itself in moral issues are classic questions for the states, not the federal government.

3. Which brings us back to the question at issue in Raich: if you let states have different rules, will it make federal regulation impossible? I wasn't persuaded of that argument in Raich and I'm certainly not persuaded of it here. Constitutional and statutory questions aside, in both cases the issue should be left to the states. And legislative or executive supporters of federal interference in both cases are certainly being fair-weather federalists.

UPDATE: I don't at all buy the claim that there's something hypoccritical about Scalia concluding that it was constitutional for Congress to use the Commerce power here:

The Court's decision today is perhaps driven by a feeling that the subject of assisted suicide is none of the Federal Government's business. It is easy to sympathize with that position. The prohibition or deterrence of assisted suicide is certainly not among the enumerated powers conferred on the United States by the Constitution, and it is within the realm of public morality (bonos mores) traditionally addressed by the so-called police power of the States. But then, neither is prohibiting the recreational use of drugs or discouraging drug addiction among the enumerated powers. From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality - for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. SeeHoke v. United States, 227 U.S. 308, 321—323 (1913); Lottery Case, 188 U.S. 321, 356 (1903). Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. The question before us is not whether Congress can do this, or even whether Congress should do this; but simply whether Congress has done this in the CSA. I think there is no doubt that it has. If the term "legitimate medical purpose" has any meaning, it surely excludes the prescription of drugs to produce death.

You got that? Even though it is found nowhere in the constitution, and justified by nothing more than a vague reference to "public morality", and involves an area traditionally left to the states, it's still a perfectly permissible.

(Emphasis in original). This misunderstands the role of the Court and the role of enumerated powers. First, as Scalia noted, this is a long-settled doctrine, and nobody in the case was calling to overturn it. Even Justices who think that we may properly revisit long-settled Constitutional doctrines are usually hesitant to do so without any party to the case asking them to. All Scalia was doing here was assuming that Congress legitimately intended to legislate for this purpose, given 100+ years of history saying it could.

More to the point, there is a big difference between saying that Congress (or another branch of government) can go beyond its enumerated powers, and saying that Congress can act within those powers for unenumerated purposes. Here, we have the latter - there is no question that the drugs involved in this case traveled in interstate commerce, and even Scalia is unlikely to sign on, at this late date, to a sufficiently cramped view of the commerce power to find that Congress can't regulate the use of goods shipped in interstate commerce; that battle was lost 70+ years ago. What Schraub is implying here is that Scalia, for consistency's sake, should have concluded that even an act within Congress' explicit powers is impermissible if the intended purpose of that act invades traditional state authority. But that is a much more radical states' rights doctrine than anybody on the current Court embraces, and it doesn't square with the plain language of the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Tenth Amendment speaks of delegated powers, not the purposes and intentions to which those powers are put. Indeed, it would be a most unconservative approach (and one specifically dissented from by Scalia in Romer v. Evans) to give constitutional dimension to the intended purposes of an act rather than look at what powers are enumerated and presume that acts taken under those powers are legitimate (as was done in South Dakota v. Dole, an opinion Scalia joined). Schraub's analogy (taken from here) to United States v. Morrison, the Violence Against Women Act case, is misplaced; the Court in that case found an absence of proper basis for the commerce power in the first instance - i.e., an insufficient nexus between interstate commerce and domestic violence - rather than creating an affirmative rule repealing the commerce power, even when otherwise applicable, based upon the intended use of that power.

The lesson, as usual, is that people who charge conservatives with hypocrisy as often as not end up demonstrating that they don't understand conservative principles.

Do you believe that a defeat for Miers would make it less likely that candidates with no paper trail will be nominated in the future, just as Bork's defeat make it less likely that candidates with extensive paper trails and well-known public positions would be nominated? Would that be a good thing?

My hope is that Balkin is right, and that the Miers withdrawal will come, in time, to be seen as a bookend to the Borking of Bork: a cautionary tale that presidents of any party should not go too far in seeking to avoid nominees with a distinguished public profile of litigating, adjudicating or commenting on issues of great public concern. And that, to me, is an extremely encouraging development, a healthy corrective to the Bork precedent.

SMART IS IN: Old conventional wisdom: a super-smart conservative judge with a track record cannot be confirmed. Find a competent but non-stellar judge with conservative inclinations and no paper trail and sneak him through. New conventional wisdom: a super-smart conservative judge is easier to confirm. He'll outsmart his senatorial critics, paper-trail or no. The Harriet Miers nomination was a product of the old conventional wisdom. The new conventional wisdom means that, for some time to come, Republican presidents are going to be choosing nominees who delight conservatives.

[W]hat's even more interesting about potentially staging a big fight over Alito's ruling in the Casey decision is the identity of the defendant, the governor who signed into law and defended in court the abortion restrictions that the Senate Democrats would presumably be describing as "extreme," "outside the mainstream," etc. - Bob Casey, the Democratic then-governor of Pennsylvania. And, of much more urgent interest, the father of the Democratic candidate challenging the most vulnerable of Republican incumbents in 2006: Rick Santorum. If the national Democratic party wants to make Judge Alito out to be a right-wing nutcase over finding that Bob Casey didn't violate the Constitution, sooner or later someone is going to ask his son if he agrees. And that's gonna be a question that will put him in an awfully bad position.

With the Alito hearings in full swing, Senator Santorum is pressuring challenger Bob Casey Jr. to state whether he supports or opposes confirmation of Samuel Alito to the Supreme Court. Until Casey expresses his view, Santorum's campaign plans to call him "Silent Bob."

That leaves much of the attack on Judge Alito's character on the shoulders of the witness dealing with the Vanguard story, retired Northeastern Law School Professor John G. Flym, a former law partner of left-leaning civil rights attorney Harvey Silverglate, who involved himself in the plaintiff's attempt to raise the Vanguard issue in 2002 after she had already lost her appeal. Flym will no doubt be painted as a high-minded academic who involved himself in this case out of concern over a gross breach of judicial ethics. But we should ask: who is John Flym?

As it turns out, the answer that comes from Google and other research on Flym is that the man is a longstanding far-left-wing activist, who most likely jumped into the Vanguard case principally for the purpose of damaging a judge who had been mentioned as a Bush Supreme Court short-lister. Consider:

The Sam Melville-Jonathan Jackson Unit (SMJJU) was responsible for seven bombings and one attempted bombing from April 1976 to February 1979.

The United Freedom Front (UFF) claimed responsibility for ten bombings and one attempted bombing between December 1982
and September 1984.

Targets of the SMJJU and UFF include both military and corporate properties. Motivation for the bombings, according to communiques received, include protesting American imperialism, exploitation, and/or militarism in Central America, and protesting South African apartheid policies.

FBI investigation has indicated that both groups are made up of common membership.

Individuals associated with these groups have been identified through FBI investigations having participated in at least two bank robberies in the state of Virginia.

*According to marijuananews.com, in 1998, Flym appeared at a panel to address "the racially-oriented history of federal drug laws".

*According to wagingpeace.org, in 2004, Flym was a signatory to a letter calling for "sanctions, including impeachment and removal from office of any civil officer of the United States responsible" for coercive interrogation practices in Iraq. What appears to be an Arabic version of the letter is here. Flym also offered support to all-purpose crackpot Francis Boyle in this online discussion about impeaching Don Rumsfeld.

One of the things any good lawyer knows - and Senate hearings are nothing if not an illustration of bad lawyering in action - is that you don't make an argument or use a demonstration in court that can be cleanly and easily shown to be misleading or outright false. When something you've just used blows up in your face, you lose credibility in a big hurry.

So, assuming he even cares, Ted Kennedy couldn't be feeling too good about Day One of the Alito hearings. Kennedy brought out a study purporting to show that Alito "was found to rule against the individual in 84 percent of his dissents. To put it plainly, average Americans have had a hard time getting a fair shake in his courtroom." As Byron York points out, Kennedy had to cherry-pick his sample very severely to reach this number, among other things focusing on just 45 dissenting opinions out of more than a thousand cases Alito has heard on the Third Circuit. (Leave aside the fact that the slant of Alito's dissents may say more about his colleagues than him. In any event, a sampling of dissents is always going to provide a more extreme look at any judge, since it crystallizes the cases where judges disagree. That may help show that Alito is more conservative than the average Third Circuit judge - but it's a long way from suggesting that he's a rubber stamp for employers or won't give litigants a fair shake where the law is in their favor).

If that wasn't enough - and with Ted Kennedy, it's never enough - Kennedy dragged out in his opening statement the claim that Judge "Alito has not written one single opinion on the merits in favor of a person of color alleging race discrimination on the job," a tortured case of Clintonian parsing that excluded cases in which Alito either (1) joined in opinions written by his colleagues or (2) ruled in favor of discrimination claimants on important procedural rulings (which can sometimes be more important than law made on the merits).

If you thought the Florida Supremes were bad, at least the Florida courts seem to accept the idea that the people are capable of overruling them. But in Massachusetts, gay activists are taking the Left's view of an imperial judiciary to its illogical extreme, arguing that once a court renders a decision, the people are forever barred from self-government on that subject:

Massachusetts Attorney General Thomas Reilly "simply got it wrong" in September when he certified VoteOnMarriage.org's marriage amendment for a petition drive, said Gary Buseck, legal director of Gay & Lesbian Advocates & Defenders (GLAD), which filed its lawsuit before the Massachusetts Supreme Judicial Court.

Article 48 of the state constitution says citizens cannot use constitutional amendments to reverse judicial decisions. The sole purpose of the marriage amendment, Mr. Buseck said, is to reverse the court's 2003 Goodridge decision, which legalized same-sex "marriage" in Massachusetts.

This is a shockingly broad assertion of judicial supremacy. If the federal constitution was read this way, we'd still be stuck with Dred Scott. Even Massachusetts' Democratic AG says this is nuts:

Citizen petitions have been used since the early 1900s to amend the state constitution "in response to a court decision finding a law unconstitutional," Mr. Reilly wrote. Petitions may not be used to "put a law back into effect" after a court has found it unconstitutional, but citizens are clearly allowed to amend the constitution "going forward," he wrote.

Indeed, if the constitution prohibited amendments to overrule the decisions of an unelected body, not only would it be fundamentally illegitimate under these principles and these, it might well be unconstitutional under the federal constitution, which guarantees each state "a Republican Form of Government," a concept that plainly contemplates that all sovereign power is ultimately answerable to the consent of the governed.

In a relatively rare move, five sitting and two retired Third Circuit judges are expected to testify on behalf of their colleague, Samuel Alito, at his upcoming hearings. It is, of course, a sign of the high esteem with which Judge Alito is viewed by his colleagues. Naturally, the Democratic response will be to attack these jurists as well: a "Democratic aide said these judicial witnesses may raise a potential conflict of interest since Alito, if confirmed to the Supreme Court, could end up ruling on appeals of their decisions." Which is silly; these are people who already know Alito well, and if he's not biased towards them already - as we know he's not, given the frequency with which he has written dissenting opinions disagreeing with many of these same colleagues - how does this change things?

1. 1985 job application : Alito was 35 when he applied for an important political position with Attorney General Ed Meese during the Reagan administration. Alito sought to demonstrate his "philosophical commitment" to Meese's legal outlook. He wrote that the 1964 Goldwater presidential campaign had been his original political inspiration, even though he was only 14 at the time.

What's unusual about this? 14 is about the age when many people start having their first semi-coherent political thoughts. Kennedy's Senate colleague Hillary Clinton was a teenage Goldwaterite. A lot has changed since 1964, and most conservatives wouldn't stick by everything Goldwater stood for then, but the broad outlines of Goldwater's thinking have become the mainstream in the GOP since 1980, and were particularly ascendant in 1985, when Alito wrote the application.

His views on the law, he said, were inspired by his "deep disagreement with Warren Court decisions."

No surprise there. Of course, disagreeing with those decisions doesn't necessarily mean Alito would vote to overturn those, but given his prior nominees and his promises on the campaign trail, it's hard to imagine Bush nominating anybody who wouldn't have deep disagreements with the Warren Court's approach.

He strongly objected to "usurpation by the judiciary" of the powers of the president, and supported the "supremacy" of the elected branches over the judiciary. Not surprisingly, Alito got the job.

And indeed, in a democracy, the elected branches must reign supreme. That doesn't mean the Supreme Court is a lapdog, or that it should be afraid to rein in Congress or the President when they exceed their powers, but the people's representatives do deserve some deference. (Not that Ted Kennedy is arguing here that Congress should not be supreme, just that the president shouldn't).

The views expressed there raise serious concerns about his ability to interpret the Constitution with a fair and open mind.

Oh, puh-leeeze. Justice Scalia has dealt adequately with this point; Justices aren't supposed to be free of thoughts and opinions about the law. It's not on the web yet but there's a great article in today's Wall Street Journal about the nomination of Louis Brandeis [It's now on the web here], who was one of the least impartial and open-minded people ever appointed to the bench. Many Justices, like Brandeis, Ruth Bader Ginsburg and Thurgood Marshall, had backgrounds as deeply ideological activists before coming to the bench.

When this embarrassing document came to light, he faced a difficult decision on whether to defend his 1985 views or walk away from them. When I and others met him a short time later, he appeared to be renouncing them -- "I was just a 35-year-old seeking a job," he told me. But now he's seeking another, far more important job. Is he saying that he did not really mean what he said then?

I've seen no sign that Alito is renouncing the entirety of his prior views; more to the point is that (1) he couched his thoughts in different terms when seeking a political job than he would as a judge, which no doubt is true as well of Stephen Breyer when he worked for . . . Ted Kennedy, and (2) twenty years have passed, and Alito may well not have exactly the opinions he did then. Most of us wouldn't.

2. Membership in "Concerned Alumni of Princeton." In 1972, the year Alito graduated from Princeton University, a group of wealthy alumni formed Concerned Alumni of Princeton (CAP) to resist the growing influx of female, African American, Hispanic and even disabled students who were changing the face of Princeton "as you knew it."

Apparently, 1985 wasn't far enough back for Kennedy. As far as I know, there's no evidence of Alito ever being active in any of CAP's activities. And do we really think this is about hostility to the disabled? CAP seems to have been mainly an anti-co-education group, granted that that may not seem like the wisest thing to join today.

The university's most famous alumnus of the day, basketball star and later U.S. senator Bill Bradley, was invited into CAP initially but quickly found it "impossible to remain a member" because of CAP's "right-wing" views. A special committee of alumni, which included future Senate Majority Leader Bill Frist, accused CAP of presenting a "distorted and hostile" view of the university.

You know, most colleges have these cranky-old-alumni groups - my alma mater, Holy Cross, does - and a lot of people sign their names to them without really endorsing their entire agenda. Kennedy has a small point here, but he really is stretching to go this many years back without any evidence of Alito actually saying or doing anything.

UPDATE:The Daily Princetonian quotes Drudge: "Alito will testify that he joined CAP as a protest over Princeton policy that would not allow the ROTC on campus." (Via Malkin) Given that Alito was himself in ROTC before it was booted from the campus, this is unsurprising. It's also worth noting that the crusade to restore ROTC at Princeton was successful - it remains one of just two Ivy League colleges that permits ROTC on campus.

Alito joined CAP about that time, despite its purposes and reputation, and remained a member through 1985, when he cited his CAP membership as another qualification to join the Meese inner circle.

As the Daily Princetonian noted, "[s]ome alumni expressed surprise at Alito's association with CAP, but at least two suggested he might have put it on the 1985 job application to appeal to a personal connection in the Reagan administration." Alito wouldn't be the first person or the last to try to connect with older alumni from his college in this way.

In 1987, when he was nominated to be U.S. attorney for New Jersey, and in 1990, when he was nominated for the U.S. Court of Appeals for the 3rd Circuit, he did not mention his CAP membership to the Senate Judiciary Committee or to then-Sen. Bradley, who introduced him to the committee at the nomination hearing and endorsed him "100 percent." Bradley says today that had he known about Alito's long membership in CAP he would have had serious questions about it.

Was he asked?

Alito now says he can't remember anything at all about CAP.

Which is utterly unsurprising, if it was a group he signed on with but was never active in. I'm sure a lot of us couldn't name, with 100% certainty, every group in high school, college and law school that we joined or whose events we attended, much less describe all of their activities. And more to the point, none of this has anything to do with "credibility"; a group like CAP may seem distasteful, but this is a square peg in the round hole of an assault on a man's integrity.

3. Failure to recuse himself in the Vanguard case : In 1990, during the confirmation process on his nomination to the 3rd Circuit, Alito disclosed that his largest investment was in Vanguard mutual funds. To avoid possible conflicts of interest, he promised us that he would recuse himself from any case involving "the Vanguard companies." Vanguard continues to be on his recusal list, and his investments in Vanguard funds have risen from tens of thousands of dollars to hundreds of thousands. Nevertheless, in 2002 he failed to recuse himself when assigned to sit on a case in which three Vanguard companies were named parties and listed prominently on every brief and on his own pro-Vanguard opinion in the case. In this case, he and the White House have floated many excuses, but none provided any sensible explanation for his failure to keep his promise or follow his "personal practice" of recusing himself whenever there was any possible ethical question about his participation in a case.

Note: in Vanguard funds, not Vanguard itself. I dealt with this issue at great length here, and concluded that this was a bogus issue. It's also not an uncommon issue in judicial world, as is shown by the cases of Ginsburg (who sat in 20 cases in which her husband owned stock in a party in her first 5 years on the Court) or Breyer (who'd heard a case involving Lloyd's of London despite being an investor); see here on Breyer's recusal issues.

4. His pledge to be absolutely impartial where the government is concerned : While chairing his confirmation hearings in 1990, I asked Alito how he could remain neutral in the cases that would come before him as a 3rd Circuit judge after his more than a dozen years of service representing the U.S. government. He stated that he would be "absolutely impartial" in all his cases. But in case after case involving the actions of U.S. marshals, IRS agents and other government officials, he has sided with the government and against the citizens, even when his fellow judges have told him he was off-base.

So, Alito has ruled in favor of the government more often than Ted Kennedy would. This is a "credibility" issue?

5. His promise to leave his personal beliefs behind when he became a judge : That's what he told me in 1990 he would do. But has he? In November 2000, at one of many Federalist Society meetings he spoke at, he indicated that he was a true believer when it came to the society's longstanding theory of an all-powerful executive.

Note that Kennedy doesn't provide a direct quote here. Certainly, many conservatives believe in a more powerful executive, and a less omnipotent Congress and Supreme Court, than most liberals do. But "all-powerful"? Get real. If Alito believed that he would never rule against the executive, nor even feel the need to offer a reasoned explanation why. This is just rhetorical smoke-blowing, and a rehash of point #1, at that.

His endorsement of presidential power and his criticism of the Supreme Court for undermining it made clear that his philosophical commitment in 1985 still drives him.

Kennedy now makes explicit the fact that he's repeating himself to fill space.

Alito's words and record must credibly demonstrate that he understands and supports the role of the Supreme Court in upholding the progress we've made in guaranteeing that all Americans have an equal chance to take their rightful place in the nation's future.

Note how Kennedy now segues into directly demanding fidelity to Ted's view of constitutional law.

"Credibility" has rarely been an issue for Supreme Court nominees, but it is clearly a major issue for Alito.

What a pitiful excuse for a hit job, really. If this is the best they have, the Democrats are desperate indeed. Kennedy has two charges that have even the slightest specificity to them: the Vanguard case, which at most is the most venial of sins for a judge, given the facts of the case, the extended chain of inferences needed to imagine how it could have affected Alito's finances, and the fact that every other judge to look at the case found it frivolous, and Alito's membership in CAP, which stretches back 33 years and has nothing to do with his credibility. The rest is just hot air about the fact that Alito approaches the law differently than Ted Kennedy would.

1. Answering questions is "particularly important," and "much more vital," for someone like Roberts, who has not "spent years forging a legacy on an appeals court, which can provide an excellent guide to [a nominee's] judicial philosophy," who has "served only two years on the bench," and as to whom there are not "many documents which would reveal [the nomineeâ€™s] thinking," and who is therefore "more of a tabula rasa than many other nominees in terms of . . . judicial philosophy."

2. At the same time, "there is a greater obligation to answer questions," "the obligation increases," and there is "more to answer for," for someone like Alito, who, unlike Roberts, has spent 15 years forging a legacy on an appeals court (which, you will recall, can provide an excellent guide to a nomineeâ€™s judicial philosophy), and who has a "written record on executive power; [a] written record on Congressional power; [a] his written record on the issue of personal autonomy and choice," and who "has spoken out - in a clear and direct way - on . . . particular issue[s]," and expressed views "strongly," and who is therefore not more of a tabula rasa than many other nominees in terms of judicial philosophy.

3. On the other hand, it was "less critical" for someone like Justice Ginsburg "to answer every question,â€ because she, unlike Roberts (but like Alito), had spent "13 years on the appeals court and had written 305 opinions," and thereby had a "long record" of spending years forging a legacy on an appeals court (an excellent guide, of course, to a nomineeâ€™s judicial philosophy), had "penned" many "substantive" writings, and thus had an extensive written record, had spoken out in a clear and direct way on issues, had expressed views strongly, and therefore was not more of a tabula rasa than many other nominees in terms of judicial philosophy.

Or, to put it differently: Roberts and Alito are Republican nominees, Ginsburg was a Democrat, and the rest is window dressing.

SCOFLA relied on the following provisions of article IX, section 1(a) of the Florida Constitution:

The relevant words are these: "It is . . . a paramount duty of the state to make adequate provision for the education of all children residing within its borders." Using the same term, "adequate provision," article IX, section 1(a) further states: "Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools."

Slip op. at 4. The OSP program allows students in failing public schools - i.e., schools that fail to meet certain minimum criteria set by the state - to choose either to move to another public school or to take a voucher to a private school of their choice. The court held that the latter option violated the requirement that a system of public schools be "uniform":

It diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida's children. This diversion not only reduces money available to the free schools, but also funds private schools that are not "uniform" when compared with each other or the public system. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the OSP the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.

Id. (emphasis added). Leaving aside the Maoist overtones of the emphasis placed on "uniformity" in the education of the populace - emphasized later in the opinion with a lengthy screed against the sin of non-uniformity by private schools - the core of the court's holding is its conclusion that allowing students to voluntarily leave the public school system and be educated elsewhere at public expense reduces the exclusive hold of the public school system on public funds for education:

The Constitution prohibits the state from using public monies to fund a private alternative to the public school system, which is what the OSP does. Specifically, the OSP transfers tax money earmarked for public education to private schools that provide the same service - basic primary education. Thus, contrary to the defendants' arguments, the OSP does not supplement the public education system. Instead, the OSP diverts funds that would otherwise be provided to the system of free public schools that is the exclusive means set out in the Constitution for the Legislature to make adequate provision for the education of children.

Id. at 25-26. First of all, nothing in the provision at issue says that the public school system must be the state's "exclusive" means of educating children. Yet, that is the real concern of the SCOFLA majority:

Although opportunity scholarships are not now widely in use, if the dissent is correct as to their constitutionality, the potential scale of programs of this nature is unlimited. Under the dissent's view of the Legislature's authority in this area, the state could fund a private school system of indefinite size and scope as long as the state also continued to fund the public schools at a level that kept them "uniform, efficient, safe, secure, and high quality." However, because voucher payments reduce funding for the public education system, the OSP by its very nature undermines the system of "high quality" free public schools that are the sole authorized means of fulfilling the constitutional mandate to provide for the education of all children residing in Florida.

Id. at 26-27. The dissent is right, of course; the language of the Florida Constitution plainly requires that the state fund and keep open a system of quality, uniformly operated public schools for anyone who wants them, but it does not set any requirement that those schools capture any particular market share. Nor is it necessarily true that a shrinking market share will reduce the quality of education for those who remain; indeed, in most businesses, the existence of competition improves services for customers of a monopoly. SCOFLA's majority substitutes its own judgment on this point for that of the legislature, even though it is the quintessential sort of public-policy judgment best left to the people's representatives in determining how to execute the enumerated powers and obligations of a legislature in assuring the quality of public services.

And not only is the majority's focus on exclusivity misplaced, it is unrealistic - unrealistic in precisely the way that Brown v. Board of Education sought to be realistic, i.e., by recognizing the reality that not all public schools are equal. The majority acts as if just saying that the public schools are uniform and high-quality will make it so. To the contrary, if all of the students in failing schools abandoned them, leaving only the functioning schools afloat, that would create a school system that was genuinely both high-quality and uniform (as the present system is not, and - in the real world - probably never will be).

In the real world, there are public schools that don't perform up to standards, there are people who want their kids to go to a public school, and there are people who do not want their kids to go to a public school. The state can't get out of its constitutional duty to try to fix those schools for those who prefer to remain, but it blinkers reality to ignore the fact that substandard schools have long been with us, and it is truly heartless to require the customers of substandard schools to wait without hope of escape while the decades-long unfulfilled promises of help on the way proceed.

The majority seeks to hide its decision behind a patina of textual analysis, but at the end of the day, it is these judgments of real-world impact that decided this case. And they are judgments best left to elected officials.

UPDATE: What really rankles about this decision is its usurpation of the role of the legislature in deciding factual questions about the impact of public policy, and without even bothering to consider evidence. Yes, it can be argued, hypothetically, that voucher programs harm the public schools, despite the fact that they reduce the obligations of those schools. But the asserted negative impact of voucher programs on the ability of the existing school system to provide a quality, uniform education - much less a quality, uniform education as compared to the existing system - depends upon a bunch of factual assumptions and is precisely the sort of highly debatable empirical policy question that should be decided by legislatures, not courts.

Note that SCOFLA did not cite any record evidence showing an actual negative impact on the school system, which you would think would be required to violate a constitutional requirement of "quality." That's what's so objectionable about this decision - yes, there are policy arguments on both sides, but without consideration of any empirical evidence the court (despite its protestations to the contrary) held that one side's theories about the policy impact were categorically true. When, in fact, it should have admitted that the fact that the question was a hotly disputed matter of public policy rendered it better suited for resolution by the Legislature, not the courts.